United States v. Nolasco-Ramirez , 391 F. App'x 309 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4614
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO ANTONIO NOLASCO-RAMIREZ, a/k/a Carlos Rojas,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00510-REP-1)
Submitted: July 16, 2010 Decided: August 6, 2010
Before DUNCAN and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant. Neil
H. MacBride, United States Attorney, S. David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Antonio Nolasco-Ramirez, a Guatemalan
citizen, pleaded guilty to one-count of illegal reentry after
prior removal and conviction of an aggravated felony, in
violation of 8 U.S.C. § 1326(a, b(2)) (2006) and was sentenced
to 96 months' imprisonment. On appeal, Nolasco-Ramirez contests
the reasonableness of his sentence, arguing that the district
court should not have imposed a sixteen level increase pursuant
to United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A).
For the following reasons, we affirm.
I.
Nolasco-Ramirez first entered the United States
illegally without inspection in 1995, near San Ysidro,
California. In May 1996, he was convicted in New Jersey of
robbery, an aggravated felony under the Immigration and
Nationality Act (INA). Immigration officials placed Nolasco-
Ramirez into removal proceedings in February 1997, and, in July
1999, an immigration judge ordered Nolasco-Ramirez removed.
Nolasco-Ramirez was removed from the United States to Guatemala
in January 2000; at the time, he was properly served with an I-
294 form notifying him of the penalties for future attempts to
illegally reenter the United States.
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Nolasco-Ramirez reentered the United States, without
approval, and was convicted of grand larceny in Virginia in
December 2002, another aggravated felony under the INA.
Immigration and Customs Enforcement (ICE) officers again
arrested Nolasco-Ramirez and placed him in removal proceedings.
In June 2006, Nolasco-Ramirez was ordered removed, and the order
was carried out in July 2006. Nolasco-Ramirez was again served
with an I-294 form.
Undeterred, Nolasco-Ramirez again reentered the United
States. In October 2008, ICE officials encountered Nolasco-
Ramirez in a Virginia prison, where he was serving a sentence
for another burglary conviction. Nolasco-Ramirez was arrested
and, after waiving his Miranda * rights, provided a written
statement admitting that he was a Guatemalan citizen and that he
had reentered the United States after being removed.
In December 2008, a federal grand jury charged
Nolasco-Ramirez with illegal reentry after prior removal and
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a, b(2)). Nolasco-Ramirez eventually pleaded guilty to
the charge, and the district court ordered the preparation of a
Pre-Sentence Report (PSR). The PSR calculated Nolasco-Ramirez's
base offense level as 8, but added 16 levels pursuant to
*
Miranda v. Arizona, 384 U.S. 436 (1965).
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§ 2L1.2(b)(1)(A), which provides for the increase if the
defendant was previously deported after conviction for a crime
of violence. The PSR also reduced the offense level by 3, for
acceptance of responsibility, yielding a total offense level of
21. With a criminal history category of VI, the PSR calculated
an advisory Guidelines range of 77-96 months' imprisonment.
At sentencing, Nolasco-Ramirez sought a downward
variance, arguing that § 2L1.2(b)(1)(A) lacked empirical support
or a policy basis and resulted in double counting. The district
court ultimately disagreed with Nolasco-Ramirez. In reaching
its decision, the district court began by noting that, under 18
U.S.C. § 3553(a)(6), which instructs sentencing courts to
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct,” it was permitted to consider Nolasco-
Ramirez’s challenge to the guideline if it resulted in “an
unjustified difference.” The district court found that it was
reasonable to differentiate between persons like Nolasco-Ramirez
who repeatedly reentered the United States to commit crimes of
violence and persons who reentered without committing serious
crimes.
In sum, the district court found that a “significant
term of imprisonment” was required, among other reasons, “to
make sure that this defendant doesn’t engage in this conduct
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again.” Accordingly, the district court adopted the PSR and
sentenced Nolasco-Ramirez to 96 months' imprisonment, the top of
the Guidelines range. Nolasco-Ramirez filed a timely appeal.
II.
On appeal, Nolasco-Ramirez argues that the district
court should have rejected application of § 2L1.2(b)(1)(A)
because it lacks empirical support or a sound policy basis and
results in double counting. We review a sentenced imposed by a
district court for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to ensure that the district court did not commit
significant procedural error, such as improperly calculating the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
factors, or failing to adequately explain the sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then
review the sentence for substantive reasonableness, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. In doing so, we presume that a sentence within a properly
calculated Guidelines range is reasonable. United States v. Abu
Ali, 528 F.3d 210, 261 (4th Cir. 2008), cert. denied 129 S. Ct.
1312 (2009); see also Rita v. United States, 551 U.S. 338, 345-
59 (2007).
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Nolasco-Ramirez concedes that the district court
properly calculated his Guidelines range, but contends that his
sentence is nonetheless unreasonable because of the application
of § 2L1.2(b)(1)(A). While the district court was free to
consider policy decisions behind the Guidelines, including the
presence or absence of empirical data, as part of its
consideration of the § 3553(a) factors in this case, see
Kimbrough v. United States, 552 U.S. 85 (2007), it was not
required to do so, United States v. Mondragon-Santiago, 564 F.3d
357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). In
addition, Kimbrough did not affect our appellate presumption for
sentences within a properly calculated Guideline range. See
Mondragon-Santiago, 564 F.3d at 366. Indeed, “[e]ven if the
Guidelines are not empirically-grounded, the rationale of Rita
undergirding the presumption still holds true: by the time an
appeals court reviews a Guidelines sentence, both the Sentencing
Commission and the district court have fulfilled their
congressional mandate to consider the § 3553(a) factors and have
arrived at the same conclusion.” Id.
Moreover, courts have routinely rejected the argument
that § 2L1.2(b)(1)(A) results in improper double counting. See,
e.g., United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.
2009); United States v. Garcia-Cardenas, 555 F.3d 1049, 1050
(9th Cir. 2009). Double counting is “generally authorized
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unless the Guidelines expressly prohibit it.” United States v.
Reevey, 364 F.3d 151, 158 (4th Cir. 2006), and Nolasco-Ramirez
has not identified any such prohibition in this case.
We therefore affirm the district court’s judgment
sentencing Nolasco-Ramirez to 96 months' imprisonment. 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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