United States v. Jesus Sanchez-Mendez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4640
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JESUS SANCHEZ-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:12-cr-00037-REP-1)
Submitted: March 28, 2013 Decided: April 18, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesus Sanchez-Mendez pled guilty without a plea
agreement to illegal re-entry by an aggravated felon, 8 U.S.C.
§§ 1326(a), (b)(2) (2006). He was sentenced to thirty-six
months in prison, to be followed by a thirty-six-month term of
supervised release. Sanchez-Mendez now appeals, contending that
his sentence is unreasonable. We affirm.
I
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. King, 673 F.3d 274, 283 (4th
Cir.), cert. denied, 133 S. Ct. 216 (2012). We first examine
the sentence for “significant procedural error.” Gall, 552 U.S.
at 51. If we find the sentence to be procedurally reasonable,
we will then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.
2010).
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion. If we find such
abuse, we reverse unless we conclude that the error was
harmless.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
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2010). However, unpreserved non-structural sentencing errors
are reviewed for plain error. Id. at 576-77.
II
Sanchez-Mendez’s total offense level was 13, and his
criminal history category was IV, for a Guidelines range of
24-30 months. The district court determined that
Sanchez-Mendez’s criminal history was sufficiently serious and
the likelihood of recidivism sufficiently great to justify an
upward departure pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.3(a)(1) (2011). The court concluded that criminal history
category IV substantially under-represented Sanchez-Mendez’s
criminal past for several reasons: five prior convictions were
not assigned criminal history points; Sanchez-Mendez had
consistently engaged in a variety of petty offenses since 2003;
he had continued to commit crimes despite having received
lenient treatment for his offenses; and he was not prosecuted —
and not assigned a criminal history point — for his initial
illegal entry into this country. The court accordingly granted
the Government’s motion for upward departure and departed to
criminal history category VI, resulting in an offense level of
33-41 months.
In sentencing Sanchez-Mendez within this range to
thirty-six months in prison, the court considered the 18
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U.S.C.A. § 3553(a) (West 2000 & Supp. 2012) factors. Among
other things, the court stated that the selected sentence
reflected the defendant’s lack of respect for the law, the need
to deter similar conduct by others, the need to protect the
public from his criminal behavior, and the need to prevent his
again entering this country illegally.
Because Sanchez-Mendez requested a sentence below the
original Guidelines range, he adequately preserved his claim
that the term of imprisonment was unreasonable, and our review
is for abuse of discretion. See Lynn, 592 F.3d at 578. When,
as here, the district court imposes a departure sentence, this
review requires us to consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). The
district court “has flexibility in fashioning a sentence outside
of the Guidelines range,” and need only “‘set forth enough to
satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis’” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007))
(brackets omitted).
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Our review of the record convinces us that the
district court did not abuse its discretion in sentencing
Sanchez-Mendez to thirty-six months in prison. First, as
explained by the district court, at least five of
Sanchez-Mendez’s prior offenses were not counted when his
criminal history category was determined, and
under-representation of criminal history “is an encouraged basis
for departure.” United States v. Dixon, 318 F.3d 585, 588-89
(4th Cir 2003). Additionally, there was a likelihood of
recidivism. Therefore, the decision to depart was proper.
Further, the district court appropriately applied several of the
§ 3553(a) factors when selecting a sentence only twenty percent
above the highest end of the original Guidelines range. See
King, 673 F.3d at 284 (concluding upward variant sentence
reasonable as it was adequately supported by reference to
§ 3553(a) factors that “the court determined required the
sentence ultimately imposed”); Diosdado-Star, 630 F.3d at 366-67(holding upward variant sentence six years longer than
Guidelines range reasonable because the court expressly relied
on several § 3553(a) factors to support the variance).
III
Sanchez-Mendez contends that the three-year term of
supervised release was unreasonable for two reasons. First, he
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maintains that the district court contravened the Guidelines,
which state that a district court “ordinarily should not impose
a term of supervised release in a case in which supervised
release is not required by statute and the defendant is a
deportable alien who likely will be deported after
imprisonment.” USSG § 5D1.1(c). Second, Sanchez-Mendez claims
that the district court’s explanation of its reasons for
imposing supervised release was inadequate. Because
Sanchez-Mendez did not object to imposition of a term of
supervised release or argue in favor of a term different than
the one imposed, our review is for plain error. See Lynn, 592
F.3d at 576-77.
We identify no such error in this case. Notably, the
Guideline does not prohibit the imposition of a term of
supervised release on deportable aliens, and we conclude that
the district court did not abuse its discretion in imposing
supervised release on Sanchez-Mendez. While the district court
did not specifically tie the § 3553(a) factors to the term of
supervised release, it is arguable that the court was not
obligated to do so because Sanchez-Mendez did not challenge the
imposition of a term of release at sentencing. In any event,
many of the § 3553(a) factors that the court mentioned in
imposing the term of imprisonment apply with equal force to the
imposition of the supervised release term. As previously
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discussed, the court considered the particular facts of Sanchez-
Mendez’s case and found that an added measure of deterrence was
needed to keep him from again illegally entering this country
and to protect the public from his propensity to break the law.
Because the court expressly considered the circumstances of the
case in determining the supervised release term, we hold that
the court’s explanation was adequate, especially on plain error
review.
IV
We accordingly affirm. 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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