US v. Miguel Rumbo-Bustos, No. 09-4352 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4352 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL RUMBO-BUSTOS, a/k/a Miguel Bustos,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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 We sentence. provide vacate sufficient explanation Rumbo-Bustos s sentence for the chosen 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). first assess generally . . . the the [are] sentence procedural employ[ed] for and in unreasonableness, substantive . . . follow[ing] considerations [the] We review of that original sentences, . . . with some necessary modifications to take into account the sentences. unique nature Id. at 438-39. of supervised release revocation A sentence imposed upon revocation of supervised release is plainly unreasonable if the district court fails sentence, in to provide adequate contraven[tion of] explanation clear for circuit the chosen precedent. United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010). A procedurally supervised reasonable release if the 2 revocation district court sentence is considered the 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. (2006); Crudup, 461 F.3d at 440. See 18 U.S.C. § 3583(e) In evaluating the sentencing court s explanation of a selected sentence, the district court must make presented. an individualized assessment based on the facts 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. 2009). United States v. Carter, 564 F.3d 325, 330 (4th Cir. 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. Here, while the district Id. court stated that it considered the Guidelines policy statements, the court did not discuss, calculate, or adopt advisory Guidelines range. the probation officer s actual 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 circumstances sentence, surrounding i.e. his his mental attempted disability, illegal reentry the 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 4
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