United States v. Alejandro Martinez-Barrera ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4073
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO MARTINEZ-BARRERA,
Defendant - Appellant.
No. 13-4074
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO MARTINEZ-BARRERA,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00281-BO-1; 5:10-cr-00389-BO-1)
Submitted: September 10, 2013 Decided: September 23, 2013
Before AGEE, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alejandro Martinez-Barrera pled guilty, without a plea
agreement, to illegal reentry by an aggravated felon, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2006). Because of this
criminal conduct, Martinez-Barrera’s probation officer
petitioned the court to revoke Martinez-Barrera’s supervised
release, which followed a term of imprisonment on a prior
conviction for illegal reentry by an aggravated felon. The
court conducted Martinez-Barrera’s sentencing and revocation
hearings in the same proceeding and sentenced Martinez-Barrera
to seventy months’ imprisonment for the illegal reentry
conviction, revoked his supervised release, and imposed a
consecutive revocation sentence of twelve months’ imprisonment.
Martinez-Barrera appeals both sentences on the ground that they
are substantively unreasonable. We affirm.
We review Martinez-Barrera’s sentence for his illegal
reentry conviction “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). When
reviewing a sentence for substantive reasonableness, we
“examine[] the totality of the circumstances” and, if the
sentence is within the properly-calculated Guidelines range, as
it is here, we apply a presumption on appeal that the sentence
is substantively reasonable. United States v. Mendoza-Mendoza,
597 F.3d 212, 216-17 (4th Cir. 2010). Such a presumption is
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rebutted only if the defendant shows “that the sentence is
unreasonable when measured against the [18 U.S.C.] § 3553(a)
[(2006)] factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
Martinez-Barrera disputes this standard of review and
argues that his sentence should not be afforded a presumption of
reasonableness because the sixteen-level enhancement he received
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2L1.2(b)(1)(A) (2012) is not based on an empirical study by
the Sentencing Commission, unfairly punishes defendants for
prior conduct that is already accounted for in their criminal
history scores, and does not accurately reflect the risk of
recidivism. These arguments amount to a policy attack on USSG
§ 2L1.2(b)(1)(A), which we conclude, as we have done repeatedly,
is without merit. See, e.g., United States v. Romero-Martinez,
500 F. App’x 215, 216 n.* (4th Cir. 2012) (No. 12-4333); United
States v. Crawford, 18 F.3d 1173, 1178-80 (4th Cir. 1994)
(rejecting argument that sixteen-level enhancement results in
impermissible double-counting); cf. United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (recognizing that
appellate courts are “not require[d to] discard[] the
presumption [of reasonableness] for sentences based on non-
empirically-grounded Guidelines” and applying presumption
accordingly). We similarly reject Martinez-Barrera’s argument
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that, because the Sentencing Commission did not base the
sixteen-level enhancement on empirical data, its determinations
are not entitled to deference.
After reviewing the record and the parties’ briefs, we
conclude that Martinez-Barrera’s seventy-month, within-
Guidelines sentence is not substantively unreasonable, as he
fails to overcome the appellate presumption of reasonableness
afforded his sentence. Indeed, Martinez-Barrera makes no
arguments apart from the meritless policy attacks on
§ 2L1.2(b)(1)(A). We also note that Martinez-Barrera has a long
history of reentering the United States illegally and, while in
the United States, has committed several drug-related offenses.
Moreover, we conclude that it was not unreasonable for the
district court to distrust Martinez-Barrera’s assurance that he
will not reenter the United States, as he already had made and
broken that promise. Accordingly, we conclude that Martinez-
Barrera’s sentence for his illegal reentry conviction was
substantively reasonable, as it was not greater than necessary
to accomplish the goals of § 3553(a).
Next, in examining Martinez-Barrera’s revocation
sentence, we “take[] a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
reasonableness review for [G]uidelines sentences.” United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
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quotation marks omitted). A sentence imposed upon revocation of
supervised release should be affirmed if it is within the
statutory maximum and not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In
reviewing a revocation sentence, “we first decide whether the
sentence is unreasonable,” following the same general principles
we apply to our review of original sentences. Id. at 438. Only
if we find that a sentence is either procedurally or
substantively unreasonable will we determine whether the
sentence is “plainly” so. Id. at 439.
A revocation sentence is substantively reasonable if
the district court states a proper basis for concluding that the
defendant should receive the sentence imposed. Id. at 440. A
defendant’s breach of trust is “a perfectly appropriate basis —
and, in fact, the principal basis on which the Guidelines
encourage courts to ground revocation sentences.” United
States v. Bennett, 698 F.3d 194, 202 (4th Cir. 2012), cert.
denied, 133 S. Ct. 1506 (2013). “[T]he court ultimately has
broad discretion to revoke its previous sentence and impose a
term of imprisonment up to the statutory maximum.” Crudup, 461
F.3d at 439 (internal quotation marks omitted).
After reviewing the record, it is apparent that the
district court imposed Martinez-Barrera’s revocation sentence
because he breached the court’s trust — a permissible factor.
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Moreover, the twelve-month revocation sentence is within the
statutory maximum. See 18 U.S.C. § 3583(e)(3) (2006). Given
the district court’s broad discretion to revoke supervised
release and impose a term of imprisonment up to the statutory
maximum, we conclude that Martinez-Barrera’s revocation sentence
is substantively reasonable. See Crudup, 461 F.3d at 439(stating that, if sentence is reasonable, inquiry ends).
Accordingly, we affirm the district court’s judgments.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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