United States v. Figueroa

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIO FIGUEROA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:03-cr-00104-F-1)
Submitted: July 30, 2010 Decided: August 19, 2010
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
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Unpublished opinions are not binding precedent in this circuit.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:
Julio Figueroa appeals his 60-month sentence of
imprisonment imposed by the district court after finding that
Figueroa violated the term of his supervised release prohibiting
criminal conduct. Figueroa pled guilty to aiding and abetting
the distribution of marijuana in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(D) (West 1999 & Supp. 2009), 18 U.S.C. § 2(2006), and possession of a firearm during and in relation to a
drug trafficking offense in violation of 18 U.S.C. §
924(c)(1)(A) (2006). (J.A. 15, 24). Figueroa was sentenced to
18 months’ imprisonment on the drug charge with a consecutive
60-month sentence of imprisonment on the firearms charge.
Figueroa was also sentenced to two concurrent three-year terms
of supervised release.
On the government’s motion, the district court later
reduced Figueroa’s sentence to 18 months’ imprisonment on the
drug charge and a concurrent sentence of 58 months’ imprisonment
on the firearms charge. Figueroa’s concurrent sentence of
supervised release remained unchanged.
Figueroa was released from custody and deported to
Honduras. After deportation, Figueroa reentered the United
States without authorization and was arrested. Based on this
conduct, Figueroa’s probation officer filed a motion to revoke
his supervised release.
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The district court revoked Figueroa’s supervised
release and found that his illegal reentry was a grade B
violation, which, combined with his original category III
criminal history, resulted in a policy statement range of 8 to
14 months’ imprisonment. See United States Sentencing
Guidelines Manual §§ 7B1.1(a)(2), p.s., 7B1.4(a), p.s. (2009).
However, the district court found that 60-month sentence of
imprisonment was available. The district court sentenced
Figueroa to 60 months’ imprisonment. In imposing the sentence,
the district court stated that it “departed upwardly because it
was the defendant’s decision to return to the United States,
which is his third documented illegal entry since 1998, and his
criminal history and ongoing disregard for the law combine to
make him a serious danger to the community.”
On appeal, Figueroa argues that the district court
procedurally erred when sentencing him because it did not
consider the factors that he offered to mitigate the length of
his prison term, such as his history and characteristics, and
placed too much emphasis on his criminal history and his illegal
reentry. We disagree.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a
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sentence is plainly unreasonable, we must first consider whether
the sentence imposed is unreasonable. Id. at 438. In making
this determination, we follow “the procedural and substantive
considerations that we employ in our review of original
sentences.” Id.; see also United States v. Moreland, 437 F.3d
424, 434 (4th Cir. 2006). In this inquiry, we take a more
deferential posture concerning issues of fact and the exercise
of discretion than reasonableness review for guidelines
sentences. United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007). Only if we find the sentence procedurally or
substantively unreasonable, must the court decide whether it is
“plainly” so. Id. at 657.
While a district court must consider Chapter Seven’s
policy statements and the statutory provisions applicable to
revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e)
(2006), the district court need not robotically tick through
every subsection, and it has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum provided by § 3583(e)(3). Moulden, 478 F.3d
at 656-57 (4th Cir. 2007); Crudup, 461 F.3d at 439. Moreover,
while a district court must provide a statement of the reasons
for the sentence imposed, the court “need not be as detailed or
specific when imposing a revocation sentence as it must be when
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imposing a post-conviction sentence.” United States v.
Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
After reviewing the record, we conclude that the
district court sentenced Figueroa within the prescribed
statutory range, considered the pertinent statutory factors, and
adequately explained the reasons for the chosen sentence. The
district court considered Figueroa’s repeated criminal conduct
and his criminal history and found that his failure to comply
with the law demonstrated that he was a serious danger to the
community, warranting a sentence of sixty months’ imprisonment.
Therefore, we find that the sentence is not procedurally
unreasonable. *
Accordingly, we affirm Figueroa’s sentence. 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.
AFFIRMED
*
We note that Figueroa has not challenged the substantive
reasonableness of the sentence.
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