United States v. Jose Mendez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE MANUEL-CALIXT MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:09-cr-00052-FL-1)
Submitted: June 20, 2013 Decided: July 11, 2013
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. Belsky, Hamden, Connecticut, for Appellant. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker, Joshua
L. Rogers, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Manuel-Calixt Mendez pleaded guilty, without a
written agreement, to multiple charges arising from his
participation in a large-scale cocaine and crack conspiracy.
The pre-sentence report (“PSR”) concluded that Mendez was
responsible for 551.6 grams of cocaine base, 52 kilograms of
cocaine, and 5,000 pounds of marijuana, which totaled a
marijuana equivalency of 23,700 kilograms. See U.S. Sentencing
Guidelines Manual (“USSG”) (2009). The PSR also assigned a
three-level increase based on Mendez’s leadership role in the
offense, USSG § 3B1.1(b), and a three-level downward adjustment
based on acceptance of responsibility, USSG § 3E1.1(b), for a
total offense level of 36. With a criminal history category of
I, Mendez’s recommended advisory Guidelines range was 188 to 235
months’ imprisonment. The court originally sentenced Mendez to
210 months’ imprisonment.
On appeal, we found that the district court plainly
erred in failing to consider the factors listed in 18 U.S.C.
§ 3553(a) (2006) or to state on the record a basis for the
sentence it imposed. Accordingly, Mendez’s sentence was vacated
and his case remanded for resentencing to allow the district
court to conduct a proper § 3553(a) analysis and to provide a
basis for the chosen sentence. See United States v. Mendez, No.
11-4095 (4th Cir. July 5, 2012) (unpublished). However, we
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upheld the district court’s calculation of drug quantity for
which Mendez was held accountable and also the enhancement he
received for his role in the offense.
On remand, the district court held another sentencing
hearing in order to address the § 3553(a) factors, as directed
by this court. After properly noting that it was foreclosed
from revisiting Mendez’s challenges to drug quantity
calculations and his leadership enhancement, see United States
v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (prohibiting relitigation
of issues expressly or impliedly decided by the appellate
court), the district court went on to discuss Mendez’s
background and history, reviewed the § 3553(a) factors, and
imposed a 188-month sentence. Mendez noted a timely appeal,
again arguing that his sentence is procedurally and
substantively unreasonable.
This court reviews the district court’s sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
standard of review involves two steps; under the first, this
court examines the sentence for significant procedural errors,
and under the second, we review the substance of the sentence.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(examining Gall, 552 U.S. at 50-51). Significant procedural
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errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51. A sentencing court “must state in open court
the particular reasons supporting its chosen sentence.” United
States v. Carter, 564 F.3d 325, 328 (internal quotation marks
omitted) (4th Cir. 2009); see also United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010). In so doing, the sentencing
judge “must place on the record an ‘individualized assessment’
based on the particular facts of the case before it[,]” which
“set[s] forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority. . . .”
Carter, 564 F.3d at 328, 330. However, the sentencing court
need not “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). If there are no significant procedural errors, this
court then considers the substantive reasonableness of the
sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51.
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Our review of the transcript of the sentencing hearing
conducted on remand leads us to conclude that the district court
carefully considered each of Mendez’s arguments and properly
addressed the § 3553(a) factors in choosing a sentence. The
court specifically addressed Mendez’s challenges to the drug
quantity attributed to him. The court discussed its review of
Mendez’s personal and family information, his health history,
education level, and employment history. The court then cited
the factors under § 3553(a) that supported its decision to
impose a 188-month sentence. We find that the district court
made an individualized assessment and adequately explained the
reasons why it rejected Mendez’s arguments for a below-
guidelines sentence as well as its reasons for the sentence it
imposed. Moreover, Mendez cannot overcome the presumption of
reasonableness accorded his within-Guidelines sentence. See
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Accordingly, we affirm.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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