United States v. Nunez-Ortiz , 364 F. App'x 7 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIANO NUNEZ-ORTIZ, a/k/a Mario Ortiz, a/k/a Ramon Ortiz-
Palomarez, a/k/a Mario Ortiz-Flores,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (1:08-cr-00178-NCT-1)
Submitted: January 13, 2010 Decided: February 4, 2010
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Angela Hewlett Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mariano Nunez-Ortiz (Nunez), a Mexican national,
appeals his eighteen month sentence for reentry into the United
States by a deported alien, in violation of 8 U.S.C. § 1326(a)
(2006). Appellate counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), questioning whether the
district court erred in sentencing Nunez outside of the advisory
guideline range, but concluding that there are no meritorious
grounds for appeal. * Nunez has not filed a pro se supplemental
brief and the Government elected not to file a brief. We
affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts
are charged with reviewing sentences for reasonableness,
considering both the procedural and substantive reasonableness
of a sentence. Id.*
While Nunez has been released from prison, this appeal is
not moot as he has a legally cognizable interest in the outcome.
Though he has been released from prison and likely deported, he
has not completed his term of supervised release. United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969)).
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In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 51. We then
determine whether the district court failed to consider the 18
U.S.C. § 3553(a) (2006) factors and any arguments presented by
the parties, treated the guidelines as mandatory, selected a
sentence based on “clearly erroneous facts,” or failed to
sufficiently explain the selected sentence. Id.; United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “The district
court ‘must make an individualized assessment[,]’. . .
apply[ing] the relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall v. United
States, 552 U.S. 38, 50 (2007)). Additionally, a district judge
must detail in open court the reasons behind its chosen
sentence, “‘set[ting] forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.’” Id. (quoting Rita v. United States, 551 U.S. 338,
356 (2007)).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
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[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51).
Here, it is clear that the district court’s sentence
was procedurally reasonable, and Nunez’s attorney does not
contend otherwise. The district court properly calculated
Nunez’s guidelines range at six to twelve months’ imprisonment
and provided an individualized assessment, explicitly stating
the reasons for varying six months upward beyond the high end of
the guideline range. Accordingly, we find that Nunez’s sentence
was procedurally reasonable.
Similarly, Nunez’s sentence was substantively
reasonable. Though the sentence was six months outside of the
upper end of the guideline range, the district judge articulated
that such an upward departure was justified due to Nunez’s
substantial criminal history, which he believed was largely
under represented in the criminal history report. Specifically,
the judge identified the fact that this was the fourth time
Nunez had illegally entered the United States, and that he had
been deported on multiple prior occasions. Moreover, the judge
noted that Nunez’s criminal offenses appeared to escalate each
time he returned and prior sentences had not deterred his
illegal behavior. Therefore, we find that the district court
did not abuse its discretion in sentencing Nunez to eighteen
months’ imprisonment.
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Therefore, we affirm the district court’s judgment. Though we
generally require that counsel inform his client, in writing, of
the client’s right to petition the Supreme Court of the United
States for further review, counsel has informed us that, due to
Nunez’s deportation, he is unable to contact or otherwise serve
his client. Accordingly, we refrain from imposing this
requirement. 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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