United States v. Lopez-Mendez , 93 F. App'x 562 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4691
FERNANDO LOPEZ-MENDEZ,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4716
FERNANDO LOPEZ-MENDEZ,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-03-99; CR-99-156)
Submitted: February 19, 2004
Decided: April 6, 2004
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellee. Angela Hewlett Miller, OFFICE OF
2 UNITED STATES v. LOPEZ-MENDEZ
THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Fernando Lopez-Mendez, a native
and citizen of Mexico, appeals his consecutive sentences of forty
months’ imprisonment on his guilty plea to illegal re-entry after hav-
ing been convicted of and deported for an aggravated felony in viola-
tion of 8 U.S.C. § 1326 (2000) (No. 03-4691) and twelve months’
imprisonment on the district court’s revocation of his supervised
release on a prior conviction (No. 03-4716). Lopez-Mendez’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that, in his view, there are no meritorious grounds for
appeal but raising the issue of whether the sentences imposed under
the United States Sentencing Guidelines were both improperly harsh.
Counsel also notes the district court imposed consecutive sentences
despite counsel’s request for concurrent sentences. Lopez-Mendez has
been informed of his right to file a pro se supplemental brief but has
not done so. Finding no meritorious issues and no error by the district
court, we affirm both judgments.
After serving his prison term on his prior conviction, Lopez-
Mendez was deported for the second time on May 29, 2002. In Octo-
ber 2002, during his period of supervised release, Lopez-Mendez
returned to the United States in violation of his supervised release
conditions. Lopez-Mendez pled guilty to violating 8 U.S.C. § 1326,
which is punishable by a prison term of up to twenty years, and also
admitted violating his supervised release conditions on his prior con-
viction. After determining that his guideline range for the new charge
was thirty-seven to forty-six months’ imprisonment, the district court
UNITED STATES v. LOPEZ-MENDEZ 3
sentenced him to forty months. On the revocation of supervised
release, the district court sentenced Lopez-Mendez to twelve months’
imprisonment to run consecutively to the forty-month term. The
twelve-month term was within both the range of eight to fourteen
months applicable under U.S. Sentencing Guidelines Manual
("USSG") § 7B1.4 (2002) and the two-year limit prescribed under 18
U.S.C. § 3583(e)(3) (2000).
No objection or error has been raised, either in the district court or
on appeal, regarding the district court’s application of the sentencing
guidelines; nor has our review of the record revealed any such error.
Because a criminal defendant is precluded from seeking review of a
sentencing court’s discretion in setting a sentence anywhere within a
properly calculated sentencing range, United States v. Jones, 18 F.3d
1145, 1151 (4th Cir. 1994), Lopez-Mendez’s challenge to his sen-
tence on the new conviction as unfairly harsh is not reviewable on
appeal.
The district court’s decisions to impose a twelve-month prison term
upon revocation of Lopez-Mendez’s supervised release and to run this
sentence consecutively to his other sentence are reviewed for abuse
of discretion. See United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995); United States v. Puckett, 61 F.3d 1092, 1097 (4th Cir.
1995). In exercising this discretion, the district court must consider
any applicable guidelines or policy statements as well as the other
factors set forth in 18 U.S.C. § 3553(a) (2000). See 18 U.S.C.
§ 3584(b) (2000); United States v. Johnson, 138 F.3d 115, 119 (4th
Cir. 1998) ("We presume in non-departures, unless some contrary
indication exists, that a district court properly considered the pertinent
statutory factors.").
The probation officer petitioning for revocation of Lopez-
Mendez’s supervised release recommended he be sentenced at the
high end of the applicable range based on his pattern of re-entry into
the United States, and furthermore, that an even higher sentence
might be warranted under USSG § 7B1.4 n.4, because his original
sentence had included a downward departure. While the district court
exercised its discretion not to impose sentences at the highest end of
the guideline and policy ranges, it properly considered Lopez-
Mendez’s disobedience of the court’s prior order when ordering his
4 UNITED STATES v. LOPEZ-MENDEZ
twelve-month sentence to run consecutively to his primary sentence.
This was also consistent with the clear policy under USSG § 7B1.3
that any sentence imposed upon revocation of supervised release run
consecutively to any sentence for the conduct that was the basis of the
revocation of supervised release. See United States v. Woodrup, 86
F.3d 359, 361 (4th Cir. 1996).
In accordance with Anders, we have reviewed the entire record in
these appeals and have found no meritorious issues for appeal. We
therefore affirm Lopez-Mendez’s conviction and sentence in No. 03-
4691 and his revocation of supervised release and sentence in No. 03-
4716.
Lopez-Mendez’s attorney has also filed a motion for leave to with-
draw as counsel. This court requires that counsel inform his client, in
writing, of his right to petition to 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, at that time, move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof
was served on the client. We therefore deny counsel’s present motion
for leave to withdraw as counsel, with leave to re-file such motion at
the appropriate time.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED