United States v. Cecilio-Matias , 208 F. App'x 199 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABELARDO FELIX CECILIO-MATIAS,
Defendant - Appellant.
No. 06-4115
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ABELARDO FELIX CECILIO-MATIAS,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (1:04-cr-00155-FWB; 1:04-cr-00365-FWB)
Submitted: October 25, 2006 Decided: December 5, 2006
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Edward Quander, Jr., QUANDER & RUBAIN, P.A., Winston-Salem,
North Carolina, for Appellant. Arnold L. Husser, Angela Hewlett
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Abelardo Felix Cecilio-
Matias appeals the district court’s judgments sentencing him to
forty-three months in prison and two years of supervised release
for illegally reentering the United States after having previously
been deported subsequent to an aggravated felony conviction, in
violation of 8 U.S.C. § 1326(a), (b) (2000), and revoking his
supervised release for a previous illegal reentry conviction and
sentencing him to a consecutive eleven-month prison term. Cecilio-
Matias’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion, there
are no meritorious grounds for appeal and concluding Cecilio-
Matias’s sentence is “reasonable by law.” Cecilio-Matias has filed
a pro se supplemental brief raising the issue of whether the
district court erred in computing his criminal history score by
assessing criminal history points for his 1992 drug conviction when
he was only sixteen years old. We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence may be unreasonable for both substantive and procedural
reasons. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006). A sentence within a properly
calculated advisory guideline range is presumptively reasonable.
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United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). This presumption can only be rebutted by
showing the sentence is unreasonable when measured against the
factors under 18 U.S.C. § 3553(a) (2000). United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006), pet. for cert. filed, __
U.S.L.W. __ (July 21, 2006) (No. 06-5439). In considering whether
the sentence is unreasonable, we review the district court’s
factual findings for clear error and its legal conclusions de novo.
United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
We will affirm the sentence imposed after revocation of
supervised release if it is within the prescribed statutory range
and not plainly unreasonable. United States v. Crudup, 461 F.3d
433, 439 (4th Cir. 2006). In making this determination, we first
consider whether the sentence is unreasonable, and if so, whether
it is “plainly” so. Id. at 438-39. While the district court must
consider the Chapter Seven policy statements and statutory
requirements and factors applicable to revocation sentences under
18 U.S.C. §§ 3553(a), 3583 (2000), the court ultimately has broad
discretion to revoke the previous sentence and impose a term of
imprisonment up to the statutory maximum upon finding a violation
of a condition of supervised release. Id.We have reviewed the record and conclude Cecilio-Matias’s
sentences are reasonable. First, the district court did not assess
any criminal history points for Cecilio-Matias’s 1992 conviction
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when computing his criminal history score. Moreover, the court
correctly determined his advisory guideline range for the reentry
conviction was thirty-seven to forty-six months and his sentencing
range on the supervised release violation was eight to fourteen
months. The court considered the pertinent factors and reasonably
determined a sentence within each of these ranges was appropriate.
Specifically, the court found as positive the fact that Cecilio-
Matias’s drug conviction occurred when he was only sixteen years
old and he had worked without committing any further drug offenses
since that time. On the negative side, although Cecilio-Matias
received a break with a below-guidelines sentence for his previous
reentry conviction and had been deported twice already, he
continued to return to the country illegally and had numerous
traffic offenses.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgments. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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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