United States v. Verve-Rodriguez ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4797
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS VERVE-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (5:08-cr-00389-D-1)
Submitted: July 15, 2010 Decided: July 26, 2010
Before TRAXLER, Chief Judge, and SHEDD and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Verve-Rodriguez, a federal inmate, pleaded guilty to
two counts of assault with a dangerous weapon, see 18 U.S.C.A. §
113(a)(3), and was sentenced to 96 months’ imprisonment. Verve-
Rodriguez appeals, challenging the reasonableness of his
sentence. We affirm.
When sentencing criminal defendants, district courts must
correctly calculate the advisory sentence under the Sentencing
Guidelines, allow the parties to argue for what they believe to
be an appropriate sentence, consider those arguments in light of
the factors set forth in 18 U.S.C.A. § 3553(a), and then select
and sufficiently explain the appropriate sentence. See Gall v.
United States, 552 U.S. 38, 49-50 (2007); United States v.
Engle, 592 F.3d 495, 499-500 (4th Cir. 2010). “Although a
comprehensive, detailed opinion is not necessarily required, the
court’s explanation must nonetheless be sufficient to satisfy
the appellate court that the district court has considered the
parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority.” Engle, 592 F.3d at 500(internal quotation marks and alterations omitted)).
On appeal, Verve-Rodriguez contends that the district
court’s explanation was insufficient because the court did not
specifically address certain issues raised by his attorney at
the sentencing hearing -- Verve-Rodriguez’s sincere remorse for
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the crime and his desire to return to Mexico and stay there. We
disagree.
After listening to the presentations of the government and
the defense, the district court announced its sentence. The
court stated that it had considered the parties’ arguments and
the § 3553(a) factors. See J.A. 48, 50. The court noted its
overarching obligation to impose a sentence “sufficient but not
greater than necessary to comply with the purposes set forth in
the statute,” J.A. 48, and the court then individually addressed
many of the § 3553(a) factors and tied those factors to the
facts of Verve-Rodriguez’s case, see J.A. 48-50. Because the
case was relatively straightforward and the district court
imposed a within-Guidelines sentence, we believe the district
court’s explanation was sufficient. See Rita v. United States,
551 U.S. 338, 359 (2007) (“Where a matter is as conceptually
simple as in the case at hand and the record makes clear that
the sentencing judge considered the evidence and arguments, we
do not believe the law requires the judge to write more
extensively.”); United States v. Hernandez, 603 F.3d 267, 271
(4th Cir. 2010) (“When imposing a sentence within the
Guidelines, . . . the explanation need not be elaborate or
lengthy because guidelines sentences themselves are in many ways
tailored to the individual and reflect approximately two decades
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of close attention to federal sentencing policy.” (internal
quotation marks omitted)).
Although the district court did not specifically mention
Verve-Rodgriguez’s remorse or his desire to return to Mexico, we
do not believe the court was required to do so, given that
counsel for Verve-Rodriguez did not argue against the imposition
of a Guidelines sentence or argue that Verve-Rodgriguez’s
remorse or his desire to return to Mexico warranted a sentence
at the low end of the advisory sentencing range. See United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (“Where the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence than that set forth in the
advisory Guidelines, a district judge should address the party’s
arguments and explain why he has rejected those arguments.”
(emphasis added; internal quotation marks omitted)).
Verve-Rodriguez also contends that the district court erred
by relying on inaccurate facts presented by the government at
the sentencing hearing -- the PSR stated that the first victim
climbed off his bunk when Verve-Rodriguez entered his cell, see
J.A. 64, while the government stated that the assault began when
Verve-Rodriguez pulled the first of his victims off the victim’s
bunk, see J.A. 47. Because Verve-Rodriguez did not object to
the government’s characterization of the facts presented at the
sentencing hearing, this claim must be reviewed for plain error
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only. See, e.g., United States v. Knight, 606 F.3d 171, 177
(4th Cir. 2010).
Under plain error review, Verve-Rodriguez bears the burden
of establishing that a plain error occurred and that his
substantial rights were affected by the error. See id. A
sentencing error affects a defendant’s substantial rights if
there is a non-speculative basis in the record for concluding
that the court would have imposed a lower sentence but for the
error. See id. at 180 (explaining that under plain-error
review, “there must be a nonspeculative basis in the record to
conclude that the district court would have imposed a lower
sentence but for the error”); Hernandez, 603 F.3d at 273 (“To
demonstrate that a sentencing error affected his substantial
rights, Hernandez would have to show that, absent the error, a
different sentence might have been imposed.”).
The attack was vicious whether the victim climbed off his
bunk voluntarily or was pulled off the bunk by Verve-Rodriguez,
and there is nothing in the record suggesting that the district
court when imposing sentence placed any significance on how the
attack began. Thus, even assuming that the other elements of
plain-error review can be satisfied, there is no non-speculative
basis in the record for concluding that the district court would
have imposed a lower sentence but for the error. Verve-
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Rodriguez therefore cannot demonstrate that his substantial
rights were affected.
Accordingly, we affirm. 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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