United States v. Cruz-Venez , 404 F. App'x 725 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4369
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SIMON CRUZ-VENEZ, a/k/a Simon Cruz-Yanez, a/k/a Simon Yanez-
Cruz,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:09-cr-00161-JBF-FBS-1)
Submitted: November 30, 2010 Decided: December 6, 2010
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Katherine Lee Martin,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Simon Cruz-Venez appeals the 48-month sentence imposed
following his guilty plea to illegal reentry by an aggravated
felon, 8 U.S.C. § 1326(a)(2) (2006). He contends that the
sentence imposed was unreasonable. We affirm.
The court reviews Cruz-Venez’s sentence for
reasonableness under a deferential abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 41 (2007). In reviewing
a sentence, this court must first ensure that the district court
committed no significant procedural error, such as incorrectly
calculating the guidelines range. United States v. Osborne, 514
F.3d 377, 387 (4th Cir. 2008). “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant [18 U.S.C.]
§ 3553(a) [(2006)] factors to the specific circumstances of the
case before it.” United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (internal quotation marks and emphasis omitted).
The court must also “state in open court the particular reasons
supporting its chosen sentence” and “set forth enough to
satisfy” this Court that it has “considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” Id. (internal quotation marks
omitted).
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If the sentence is free from procedural error, we then
review it for substantive reasonableness. Gall, 552 U.S. at 51.
“Substantive reasonableness review entails taking into account
the “totality of the circumstances, including the extent of any
variance from the Guidelines range.” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51). Even if this court would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal
of the district court.’” Id. at 474 (quoting Gall, 552 U.S. at
51).
Cruz-Venez does not dispute that his guidelines range
was properly calculated. He argues instead that his sentence is
substantively unreasonable because his offense level was
enhanced by sixteen levels and his criminal history points by
five based on his prior convictions which were over ten years
old. However, this court has held that use of a prior
conviction to increase the offense level and criminal history is
permissible for the offense of reentry by an alien after a
felony conviction. United States v. Crawford, 18 F.3d 1173,
1174-76, 1179 (4th Cir. 1994) (holding it is not impermissible
double counting to treat prior felony as a specific offense
characteristic under USSG § 2L1.2(b) and to count it in
calculating criminal history under USSG § 4A1.1, where prior
offense accounted for six of twelve criminal history points and
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sixteen-level enhancement); see United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (affirming sixteen-level
enhancement where the prior felony offense was fourteen years
prior to the unlawful reentry conviction).
We apply an appellate presumption that a sentence
imposed within the properly calculated guidelines range is
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
(upholding appellate presumption of reasonableness for within-
guidelines sentence). In rejecting Cruz-Venez’s arguments for a
lesser sentence, the district court thoroughly considered the
§ 3553(a) sentencing factors and determined that they were best
served by the imposition of a within-guidelines sentence.
Furthermore, the court acknowledged its authority to impose a
downward variance sentence, but concluded that, in light of the
seriousness of Cruz-Venez’s prior felony offenses, his lack of
respect for the law, the seriousness of his offense conduct of
driving while under the influence and without a driver’s
license, and his unlawful reentry into the United States after
having been deported, a variance was not warranted.
Under these circumstances, we conclude that the
district court did not abuse its discretion and that Cruz-
Venez’s sentence is reasonable. Accordingly, we affirm Cruz-
Venez’s sentence. We dispense with oral argument because the
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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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