US v. Mariano Nunez-Ortiz, No. 09-4683 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4683 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIANO NUNEZ-ORTIZ, a/k/a Mario Ortiz, a/k/a Ramon OrtizPalomarez, a/k/a Mario Ortiz-Flores, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00178-NCT-1) Submitted: January 13, 2010 Decided: February 4, 2010 Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mariano Nunez-Ortiz (Nunez), a Mexican national, appeals his eighteen month sentence for reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a) (2006). v. Appellate counsel has filed a brief pursuant to Anders California, 386 U.S. 738 (1967), questioning whether the district court erred in sentencing Nunez outside of the advisory guideline range, but concluding that there are no meritorious grounds for appeal. * brief and the Nunez has not filed a pro se supplemental Government elected not to file a brief. We affirm. Regardless of whether the sentence imposed is inside or outside review the the [g]uidelines sentence under range, an the appellate abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). are charged with reviewing sentences for court must standard. Appellate courts reasonableness, considering both the procedural and substantive reasonableness of a sentence. Id. * While Nunez has been released from prison, this appeal is not moot as he has a legally cognizable interest in the outcome. Though he has been released from prison and likely deported, he has not completed his term of supervised release. United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). 2 In assess determining whether the procedural district reasonableness, court properly defendant s advisory guidelines range. we first calculated Id. at 51. the We then determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on clearly erroneous facts, sufficiently explain the selected sentence. or must apply[ing] make the an individualized relevant § 3553(a) 564 F.3d 325, 328 (4th Cir. must detail sentence, in open set[ting] court forth to the . . specific United States v. Carter, 2009) States, 552 U.S. 38, 50 (2007)). The district assessment[,] . factors circumstances of the case before it. to Id.; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). court failed (quoting Gall v. United Additionally, a district judge the reasons enough to behind satisfy its the chosen appellate court that he has considered the parties arguments and has a reasoned basis authority. for exercising his own legal decisionmaking Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). Finally, we review the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variance from the 3 [g]uidelines range. Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at 51). Here, it is clear that the district court s sentence was procedurally contend reasonable, otherwise. The and Nunez s district court attorney properly does not calculated Nunez s guidelines range at six to twelve months imprisonment and provided an individualized assessment, explicitly stating the reasons for varying six months upward beyond the high end of the guideline range. Accordingly, we find that Nunez s sentence was procedurally reasonable. Similarly, reasonable. Nunez s sentence was substantively Though the sentence was six months outside of the upper end of the guideline range, the district judge articulated that such an substantial upward criminal departure history, was which justified he due believed under represented in the criminal history report. to Nunez s was largely Specifically, the judge identified the fact that this was the fourth time Nunez had illegally entered the United States, and that he had been deported on multiple prior occasions. Moreover, the judge noted that Nunez s criminal offenses appeared to escalate each time he returned illegal behavior. and prior sentences had not deterred his Therefore, we find that the district court did not abuse its discretion in sentencing Nunez to eighteen months imprisonment. 4 In accordance with Anders, we have reviewed the entire record for any meritorious issues and have found Therefore, we affirm the district court s judgment. none. Though we generally require that counsel inform his client, in writing, of the client s right to petition the Supreme Court of the United States for further review, counsel has informed us that, due to Nunez s deportation, he is unable to contact or otherwise serve his client. requirement. Accordingly, we refrain from imposing this 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 5
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