United States v. Moises Rivas-Posada

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES RIVAS-POSADA, a/k/a Moises Rivers, a/k/a Moises Rivas
Posada, a/k/a Moises Rivera, a/k/a Moises Posada,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:15-cr-00154-LMB-1)
Submitted: July 28, 2016 Decided: August 3, 3016
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Caroline S.
Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Angela Mulunesh Fiorentino-Rios, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moises Rivas-Posada pled guilty, pursuant to a plea
agreement, to unlawful reentry after removal following
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012). The district court sentenced Rivas-
Posada to 36 months’ imprisonment and 3 years’ supervised
release. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but questioning whether the
sentence is reasonable. Rivas-Posada has not filed a
supplemental pro se brief, despite receiving notice of his right
to do so. We affirm in part, vacate in part, and remand for
further proceedings.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Sentencing
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Id. at 49-51. If there are no procedural errors, we
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then consider the substantive reasonableness of a sentence,
evaluating “the totality of the circumstances.” Id. at 51. A
sentence is presumptively reasonable if it is within or below
the Guidelines range, and this “presumption can only be rebutted
by showing that the sentence is unreasonable when measured
against the 18 U.S.C. § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
In this case, the record establishes that Rivas-Posada’s
below-Guidelines sentence of 36 months’ imprisonment is
procedurally and substantively reasonable. The district court
correctly calculated Rivas-Posada’s criminal history category,
total offense level, and Guidelines range, provided the parties
the opportunity to argue for an appropriate sentence, and
considered Rivas-Posada’s allocution. The court provided an
adequate and individualized explanation of its sentencing,
highlighting Rivas-Posada’s risk of recidivism. Contrary to
counsel’s assertion, the district court considered the age of
Rivas-Posada’s felony convictions, and adequately described why
it was not persuaded that this factor warranted further
variance.
Turning to the supervised release portion of the sentence,
in the case of a deportable alien who will likely be deported
after imprisonment, the Sentencing Guidelines provide that,
unless otherwise required by statute, “[t]he court ordinarily
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should not impose a term of supervised release.” U.S.
Sentencing Guidelines Manual § 5D1.1(c) (2014). However, if the
district court concludes that a supervised release term would
provide “an added measure of deterrence and protection based on
the facts and circumstances of a particular case,” then “[t]he
court should . . . consider imposing a term of supervised
release.” Id. § 5D1.1 cmt. n.5. Although the district court
should make such a finding on the record, “where a sentencing
court (1) is aware of Guidelines section 5D1.1(c); (2) considers
a defendant’s specific circumstances and the § 3553(a) factors;
and (3) determines that additional deterrence is needed, nothing
more is required.” United States v. Aplicano-Oyuela, 792 F.3d
416, 424 (4th Cir. 2015) (alterations and internal quotation
marks omitted).
In the instant case, there is no evidence that the district
court was aware of the applicability of USSG § 5D1.1(c). The
presentence investigation report failed to mention § 5D1.1, and
neither the district court nor the parties referenced it during
the sentencing hearing or in sentencing memoranda. We conclude
this failure to consider USSG § 5D1.1(c) is procedurally
unreasonable. Accordingly, we vacate the portion of the
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sentencing imposing supervised release and remand for further
proceedings. ∗
Pursuant to Anders, we have reviewed the remainder of the
record in this case and have found no other meritorious grounds
for appeal. Accordingly, we affirm Rivas-Posada’s conviction
and 36-month term of imprisonment.
This court requires that counsel inform Rivas-Posada, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Rivas-Posada requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Rivas-Posada.
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 IN PART,
VACATED IN PART,
AND REMANDED
∗ We express no opinion regarding the propriety of
supervised release in this case.
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