United States v. Hernandez-Sanchez , 292 F. App'x 230 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GIOVANNI HERNANDEZ-SANCHEZ, a/k/a Joninim Fernandez, a/k/a
Julio Iglesias, a/k/a Julio Iglesian, a/k/a Jovani Hernandez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (3:07-cr-00376-JFA-1)
Submitted: July 31, 2008 Decided: September 2, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Aileen P.
Clare, Research & Writing Specialist, Columbia, South Carolina, for
Appellant. Kevin F. McDonald, Acting United States Attorney, Anne
Hunter Young, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Giovanni Hernandez-Sanchez appeals the seventy-month
sentence imposed after he pleaded guilty to illegal reentry of a
deported alien felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). Finding no error, we affirm.
Hernandez-Sanchez argues that the district court imposed
an unreasonable sentence by applying the sixteen-level enhancement
under U.S. Sentencing Guidelines Manual (“USSG”)
§ 2L1.2(b)(1)(A)(ii) (2006). Specifically, although
Hernandez-Sanchez concedes that he pled guilty to resisting arrest
under South Carolina law, he asserts that he was convicted of a
misdemeanor under S.C. Code Ann. § 16-9-320(A) (2003), rather than
a felony under § 16-9-320(B). This distinction is critical, as a
felony resisting arrest conviction qualifies as a “crime of
violence”* that supports the sixteen-level enhancement of
Hernandez-Sanchez’s offense level, whereas a misdemeanor resisting
arrest conviction does not.
We conclude that the evidence supports the district
court’s finding that the Government established Hernandez-Sanchez’s
conviction for felony resisting arrest. Although Hernandez-Sanchez
*
A “crime of violence” includes “any offense under federal,
state, or local law that has as an element the use, attempted use,
or threatened use of physical force against the person of another.”
USSG § 2L1.2 cmt. n.1(B)(iii). Hernandez-Sanchez does not argue
that felony resisting arrest under South Carolina law does not
qualify as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii).
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points out that the criminal docket report code, an administrative
code reported on the state sentencing sheet, is not dispositive,
see State v. Bennett, 650 S.E.2d 490, 493-95 (S.C. Ct. App. 2007),
the code was only one piece of the corroborating evidence. The
probation officer’s recommendation was also supported by the fact
that the plea and sentencing sheet contained notations
corresponding to the penalties for felony resisting arrest. The
offense description on the plea and sentencing sheet was also
specific to the language of the felony subsection. Finally, the
“lesser included offense” box was unchecked. In short, the
determination that Hernandez-Sanchez pleaded guilty to felony
resisting arrest was supported by a preponderance of the evidence.
See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)
(“Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence . . .”).
Hernandez-Sanchez also argues, as he did below, that
application of the sixteen-level enhancement resulted in a sentence
that is greater than necessary to achieve the statutory purposes of
sentencing. He claims that the facts underlying his conviction are
not typical of a crime of violence, and that the district court
should have considered that Hernandez-Sanchez will likely also
suffer the non-criminal sanction of deportation.
This court will affirm a sentence so long as it is within
the statutorily prescribed range and is reasonable. United
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States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
Reasonableness review focuses on whether the district court abused
its discretion. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). When sentencing a defendant, the district court must
(1) properly calculate the guidelines range; (2) determine whether
a sentence within that range serves the 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2008) factors in light of the arguments presented by
the parties; (3) implement mandatory statutory limitations; and
(4) explain its reasons for selecting a sentence. See Gall v.
United States, 128 S. Ct. 586, 596-97 (2007). “Even if we would
have reached a different sentencing result on our own, this fact
alone is ‘insufficient to justify reversal of the district court.’”
Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at 597).
Here, the district court properly calculated the
guidelines range, granted a variance in Hernandez-Sanchez’s favor
based on an amendment to USSG § 4A1.2(a)(2) not yet in effect at
the time of the sentencing hearing, and determined that a sentence
at the bottom of that recalculated range would best serve the
§ 3553(a) factors. The district court considered the circumstances
of the 2006 resisting arrest conviction and was aware of the issue
of deportation. Based on the record as a whole, the district court
properly considered all the factors and arguments in arriving at
its sentence. Thus, there was simply no abuse of discretion.
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We therefore affirm the sentence. 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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