US v. Julio Figueroa, No. 09-4570 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4570 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIO FIGUEROA, Defendant - Appellant.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 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, August 19, 2010 and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. the distribution Figueroa pled guilty to aiding and abetting 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 924(c)(1)(A) (2006). in violation (J.A. 15, 24). of 18 U.S.C. § 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 deported to supervised release remained unchanged. Figueroa Honduras. After was released deportation, from custody Figueroa and reentered States without authorization and was arrested. the United Based on this conduct, Figueroa s probation officer filed a motion to revoke his supervised release. 2 The release and violation, district found which, court that his combined revoked illegal with Figueroa s reentry his supervised was original a grade category B 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 imprisonment district was court found available. that The Figueroa to 60 months imprisonment. 60-month district sentence court of sentenced 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 procedurally appeal, erred Figueroa when argues sentencing that him the district because it did court 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 3 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 sentences. that we employ in our review of original 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 reasonableness review for guidelines United States v. Moulden, 478 F.3d 652, 656 (4th sentences. Cir. than 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 revocation and sentences the statutory under 18 provisions U.S.C. §§ applicable 3553(a), to 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). at 656-57 (4th Cir. 2007); Moulden, 478 F.3d 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 4 imposing a post-conviction sentence. United States v. that the Thompson, 595 F.3d 544, 547 (4th Cir. 2010). After district court reviewing sentenced the record, Figueroa we conclude 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, dispense with oral we affirm argument Figueroa s because the sentence. facts and We 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. 5

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