United States v. Jose Gomez-Ortiz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ISRAEL GOMEZ-ORTIZ, a/k/a Jose Rene Sanchez, a/k/a Jose
Israel Ortiz-Gomez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:12-cr-00214-D-1)
Submitted: June 20, 2013 Decided: July 2, 2013
Before WILKINSON, KING, and KEENAN, 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Affirmed by unpublished per curiam opinion.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, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Israel Gomez-Ortiz (a native and citizen of El
Salvador) pled guilty, without a written plea agreement, to
illegally reentering the United States subsequent to a
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b) (2006). At sentencing, the district court
applied a 16-level enhancement, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(i), based on two
prior California state convictions for possession of crack
cocaine for sale—an aggravated felony. * Gomez-Ortiz’ total
offense level, after a three-level reduction for acceptance of
responsibility, was 21. With a criminal history category of V,
Gomez-Ortiz’ advisory Guidelines range was 70 to 87 months’
imprisonment. After hearing defense counsel’s arguments for a
below-Guidelines sentence, the district court imposed an 84-
month sentence. Gomez-Ortiz noted a timely appeal.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
*
Section 2L1.2(b)(1)(A)(i) provides for a 16-level increase
if a defendant illegally reenters the United States after being
convicted of a felony drug trafficking offense, for which he
received at least thirteen months’ imprisonment.
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see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
In determining the procedural reasonableness of a sentence, this
court considers whether the district court properly calculated
the defendant’s Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) (2006), factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. A sentence imposed within the properly calculated
Guidelines range is presumed reasonable by this court. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010),
cert. denied, 131 S. Ct. 3078 (June 27, 2011).
Gomez-Ortiz concedes that the district court committed
no procedural error. His sole claim on appeal is that the 16-
level enhancement is substantively unreasonable. However, this
Court has rejected the policy challenge advanced by Gomez-Ortiz.
See United States v. Rivera-Santana, 668 F.3d 95, 101-102 (4th
Cir. 2012). This Court has also rejected claims that
application of the 16-level enhancement results in impermissible
double-counting. See United States v. Crawford, 18 F.3d 1173,
1178-79 (4th Cir. 1994).
Therefore, we affirm Gomez-Ortiz’ sentence. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this Court and argument would not aid the decisional process.
AFFIRMED
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