United States v. Rumbo-Bustos

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL RUMBO-BUSTOS, a/k/a Miguel Bustos,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00076-BR-1)
Submitted: August 13, 2010 Decided: August 25, 2010
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Rumbo-Bustos appeals from his twenty-four month
sentence imposed pursuant to the revocation of his supervised
release. On appeal, Rumbo-Bustos asserts that his sentence was
procedurally unreasonable because the district court failed to
consider the Guidelines range and statutory sentencing factors
and failed to provide sufficient explanation for the chosen
sentence. We vacate Rumbo-Bustos’s sentence and remand for
further proceedings.
We will affirm a sentence imposed after revocation of
supervised release if it is not plainly unreasonable. See
United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). We
first assess the sentence for unreasonableness, “follow[ing]
generally the procedural and substantive considerations that
. . . [are] employ[ed] in . . . [the] review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Id. at 438-39. A sentence imposed upon revocation
of supervised release is plainly unreasonable if the district
court fails to provide adequate explanation for the chosen
sentence, in “contraven[tion of] clear circuit precedent.”
United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
2
Chapter Seven advisory policy statement range and the 18 U.S.C.
§ 3553(a) (2006) factors that it is permitted to consider in a
supervised release revocation case. See 18 U.S.C. § 3583(e)
(2006); Crudup, 461 F.3d at 440. In evaluating the sentencing
court’s explanation of a selected sentence, the district court
“must make an individualized assessment based on the facts
presented.” Gall v. United States, 552 U.S. 38, 50 (2007).
While the individualized assessment of each defendant need not
be elaborate or lengthy, it must provide a rationale tailored to
the particular case at hand and be adequate to permit appellate
review. United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). Thus, a recitation of the § 3553 factors and purposes is
insufficient. Likewise, a conclusory statement that a specific
sentence is the proper one does not satisfy the district court’s
responsibilities. Id. at 328-29. In addition, we cannot
presume that the district court adopted the arguments of one of
the parties while imposing sentence; an appellate court may not
guess at the district court’s rationale. Id.
Here, while the district court stated that it
considered the Guidelines’ policy statements, the court did not
discuss, calculate, or adopt the probation officer’s actual
advisory Guidelines range. Nor did the court state that it
considered the § 3553 statutory sentencing factors. Moreover,
the court did not address Rumbo-Bustos’s arguments in favor of a
3
shorter/concurrent sentence, i.e. his mental disability, the
circumstances surrounding his attempted illegal reentry into
this country, his lack of ties to Mexico, and his work history.
Likewise, the district court did not discuss the Government’s
arguments for a consecutive sentence based upon Rumbo-Bustos’s
criminal history and repeated deportations. Instead, the court
stated only that it was “revealing” that Rumbo-Bustos did not
foresee the consequences of violating his supervised release and
that, while there is a lot of poverty in Mexico, “the law is the
law.” Neither of these arguments was proffered by either party.
Further, the court did not explain whether Rumbo-Bustos’s
failure to foresee the consequences of his actions weighed in
his favor or against him. Finally, while “the law is the law,”
the law also provided for a shorter or concurrent sentence at
the court’s discretion. The court gave no indication why it
decided to exercise its discretion as it did, and any attempt to
extrapolate as to the court’s intention would be guesswork.
Based on the foregoing, we vacate Rumbo-Bustos’s
sentence and remand for further proceedings consistent with this
opinion. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
4