United States v. Juan Velasquez-Penuelas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CARLOS VELASQUEZ-PENUELAS, a/k/a Diego Martinez
Penuelas,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (4:11-cr-00080-F-1)
Submitted: August 31, 2012 Decided: September 11, 2012
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without the benefit of a written plea agreement, Juan
Carlos Velasquez-Penuelas, a native and citizen of Mexico, pled
guilty to illegally reentering the United States following his
removal as an aggravated felon, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). The district court sentenced
Velasquez-Penuelas to seventy months’ imprisonment, at the
bottom of his advisory sentencing range. On appeal, Velasquez-
Penuelas challenges only the procedural reasonableness of his
sentence. Specifically, Velasquez-Penuelas asserts that the
district court committed reversible procedural error by failing
to address his nonfrivolous arguments in favor of a downward
variance and failing to state, on the record, the reasons for
the sentence it imposed. For the following reasons, we affirm.
This court applies an abuse of discretion standard of
review as to this claim. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Diosdado–Star, 630 F.3d 359,
363 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).
Reasonableness review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Gall, 552 U.S. at 51. In determining the procedural
reasonableness of a sentence, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, considered the 18 U.S.C. § 3553(a) (2006) factors,
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analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). The
explanation must be sufficient to allow for “meaningful
appellate review,” id. (internal quotation marks omitted), such
that the appellate court need “not guess at the district court’s
rationale.” Id. at 329.
Velasquez-Penuelas assigns procedural error to the
district court’s failure, despite his request for a downward
variant sentence, to explain its reasons for selecting a
seventy-month sentence. Because Velasquez-Penuelas preserved
this issue by arguing for a sentence other than that which he
ultimately received, our review is for an abuse of discretion.
See United States v. Lynn, 592 F.3d 572, 583–84 (4th Cir. 2010).
Based on our review of the sentencing transcript, we
agree that the district court’s explanation in this case was
insufficient, thereby rendering Velasquez-Penuelas’ sentence
procedurally unreasonable. Thus, “we [must] reverse unless we
conclude that the error was harmless.” Id. at 576. The
Government may establish that such a procedural error was
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harmless, and thus avoid remand, by showing “that the error did
not have a substantial and injurious effect or influence on the
result and we can say with fair assurance that the district
court’s explicit consideration of the defendant’s arguments
would not have affected the sentence imposed.” United States v.
Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation
marks and alterations omitted); see also Lynn, 592 F.3d at 585.
Applying this standard to the facts of this case, we
conclude that the Government has satisfied its burden of showing
that the district court’s procedural error was harmless. We
first note that, as evidenced by the district court’s recitation
of Velasquez-Penuelas’ criminal history and history of illegally
entering the United States, the court was plainly familiar with
Velasquez-Penuelas’ background as it was relevant to the
§ 3553(a) sentencing factors. Given the district court’s
consideration of Velasquez-Penuelas’ history and
characteristics, coupled with its decision to impose a sentence
at the bottom of his advisory Guidelines range, we agree with
the Government that any shortcoming in the court’s explanation
for the sentence imposed is harmless. See United States v.
Montes–Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (noting that
“[t]he context surrounding a district court’s explanation may
imbue it with enough content for us to evaluate both whether the
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court considered the § 3553(a) factors and whether it did so
properly”).
The Government’s position is further supported by the
fact that the arguments Velasquez-Penuelas advanced in favor of
a below-Guidelines sentence were less than persuasive,
particularly when juxtaposed with the district court’s awareness
of Velasquez-Penuelas’ chronic recidivism and significant
criminal history. See Boulware, 604 F.3d at 839–40 (explaining
that comparative weakness of a defendant’s arguments for a lower
sentence is one reason to decline to remand a case for further
explanation). Finally, we have little doubt that the district
court considered defense counsel’s arguments in favor of a
downward variance, as this was the only issue contested at
sentencing and it was vigorously contested. See id. at 839(holding that, “even if the district court erred by not
adequately explaining its reasons for rejecting Boulware’s
argument for a below-guidelines sentence, we are quite confident
that the district court undertook that analysis and considered
Boulware’s argument”).
For these reasons, we conclude that, even though the
district court might have said more to demonstrate its
individualized consideration of Velasquez-Penuelas’ arguments,
remand in this instance is unwarranted. Accordingly, we affirm
the judgment of the district court. We dispense with oral
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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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