United States v. Herrera-Gonzalez ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5230
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN HERRERA-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00216-WLO)
Submitted: July 31, 2007 Decided: August 15, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Herrera-Gonzalez pled guilty to illegal reentry of
a deported alien after conviction of an aggravated felony, 8 U.S.C.
§ 1326(a), (b)(2) (2000), and possession of a firearm by a
convicted felon, 18 U.S.C. § 921(g)(1) (2000), and was sentenced to
a term of fifty-nine months imprisonment. Herrera-Gonzalez appeals
his sentence, arguing that the district court erred when it refused
to group both counts together in a single group under U.S.
Sentencing Guidelines Manual § 3D1.2(a) (2006). We affirm.
To determine the offense level when there are multiple
counts of conviction, § 3D1.2(a) directs that counts involving the
same victim and the same act or transaction should be placed into
a single group. In offenses where there is no identifiable victim,
the term “victim” means “the societal interest that is harmed.”
USSG § 3D1.2, comment. (n.2). Thus, counts should be placed in a
single group “when the societal interests that are harmed are
closely related.” Id. Here, had both counts been grouped
together, the total offense level would have been lower because
there would have been no multiple count adjustment under USSG
§ 3D1.4. At the sentencing hearing, defense counsel argued
unsuccessfully that the societal interests affected by each offense
were sufficiently similar that the counts should be grouped
together.
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We review de novo the legal interpretation of the
guidelines and application of the guidelines to undisputed facts.
United States v. Toler, 901 F.2d 399, 402 (4th Cir. 1990). As
Herrera-Gonzalez acknowledges, four circuits have held that the
societal interests protected by immigration laws are too different
from those protected by laws regulating possession of firearms by
convicted felons to permit these offenses to be grouped under
§ 3D1.2(a). See United States v. Herrera, 265 F.3d 349, 353 (6th
Cir. 2001); United States v. Salgado-Ocampo, 159 F.3d 322, 328 (7th
Cir. 1998); United States v. Baeza-Suchil, 52 F.3d 898, 900 (10th
Cir. 1995); United States v. Barron-Rivera, 922 F.2d 549, 554-55
(9th Cir. 1991). We find these authorities persuasive. We
therefore conclude that the district court did not err in refusing
to place Herrera-Gonzalez’s two counts in a single group, and that
the sentence was thus reasonable. United States v. Moreland, 437
F.3d 424, 433 (4th Cir.) (stating standard of review for
reasonableness), cert. denied, 126 S. Ct. 2054 (2006).
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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