United States v. Marlon Viera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON DANILLO VIERA, a/k/a Marlon Caranza-Dera,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:15-cr-00377-F-1)
Submitted: December 28, 2016 Decided: January 6, 2017
Before TRAXLER, KEENAN, 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Affirmed by unpublished per curiam opinion.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. John Stuart Bruce, United States Attorney, Jennifer
P. May-Parker, First Assistant United States Attorney, Kristine
L. Fritz, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Based on Marlon Danillo Viera’s guilty plea to illegal
reentry, the district court revoked his supervised release for a
prior offense and sentenced him to 10 months’ imprisonment. The
court ordered Viera to serve his revocation sentence consecutive
to his 30-month sentence for illegal reentry. Viera appeals,
arguing that the district court erred when it ordered the
revocation sentence to run consecutively. For the reasons that
follow, we affirm.
We will affirm a revocation sentence if it falls within the
applicable statutory maximum and is not “plainly unreasonable.”
United States v. Padgett, 788 F.3d 370, 373 (4th Cir.), cert.
denied, 136 S. Ct. 494 (2015). Under this standard, we first
determine whether the sentence is procedurally or substantively
unreasonable. United States v. Webb, 738 F.3d 638, 640 (4th
Cir. 2013). In doing so, “we strike a more deferential
appellate posture than we do when reviewing original sentences.”
Padgett, 788 F.3d at 373 (internal quotation marks omitted).
“Only if we find the sentence unreasonable must we decide
whether it is plainly so.” Webb, 738 F.3d at 640 (internal
quotation marks omitted).
A revocation sentence is procedurally reasonable if the
district court considered the policy statements in Chapter Seven
of the Sentencing Guidelines Manual, the policy-statement range,
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and the applicable 18 U.S.C. § 3553(a) (2012) factors. Padgett,
788 F.3d at 373; see 18 U.S.C. § 3583(e) (2012). A revocation
sentence is substantively reasonable if the district court
identified a proper basis for its sentence. United States v.
Crudup, 461 F.3d 433, 440 (4th Cir. 2006). We presume
reasonable a sentence within the applicable range. Padgett, 788
F.3d at 373.
Here, the district court imposed a reasonable revocation
sentence. Upon revoking Viera’s supervised release, the
district court considered the appropriate factors under Chapter
7 and § 3553(a) and sentenced Viera to a sentence within the
policy-statement range. The court also identified a proper
basis for the sentence based on Viera’s pattern of illegal
conduct while under supervised release. Moreover, contrary to
Viera’s contention, the court did not err by imposing a
consecutive sentence for the supervised release violation merely
because the same conduct provided the basis for a separate
criminal conviction. See United States v. Johnson, 138 F.3d
115, 118 (4th Cir. 1998). Because the district court imposed a
reasonable revocation sentence, we decline to overturn it on
appeal.
Accordingly, we affirm the district court’s judgment. 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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