US v. Ricardo Centeno-Villanueva, No. 09-4203 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4203 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RICARDO CENTENO-VILLANUEVA, a/k/a Ricardo Villanueva, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00051-RLV-DCK-1) Submitted: September 4, 2009 Decided: November 24, 2009 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ann L. Hester, Angela Parrott, Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ricardo reentering the subsequent to Centeno-Villanueva United the States commission pled after of an guilty deported aggravated violation of 8 U.S.C. § 1326(a), (b) (2006). to seventy-seven months imprisonment. illegally been having to felony, in He was sentenced Centeno-Villanueva now appeals, arguing that the district court erred in relying upon his 1992 conviction for taking indecent liberties with a minor to add three criminal history points to Guidelines calculation for his current offense. the Sentencing According to Centeno-Villanueva, he may have left the United States following his arrests in 2000 or 2004 and reentered again before being arrested in 2007. If this occurred, his 1992 conviction may well have preceded Centeno-Villanueva s most recent reentry into the United States by more than fifteen years, thus disqualifying it from consideration in the assessment of Centeno-Villanueva s Guidelines range. This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). appellate court must first In reviewing a sentence, the ensure that the district court committed no significant procedural error, such as failing to calculate or improperly calculating the Guidelines range. 2 Gall, 552 U.S. at 51. determinations District courts are obliged to make factual supporting the calculation of a defendant s advisory guidelines range by a preponderance of the evidence. United States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009). These factual determinations by the district court are reviewed for clear error and will be reversed only if this court is left with the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotations and citations omitted). According to ( USSG ) § 4A1.2(e)(1), history, [a]ny U.S. prior for Sentencing purposes sentence of of Guidelines calculating imprisonment Manual criminal exceeding one year and one month that was imposed within fifteen years of the defendant s USSG commencement § 4A1.2(e)(1). Villanueva s unknown. exact of The the instant Government reentry date into offense concedes the is counted. that Centeno- United States is However, the uncontested facts in the record are that Centeno-Villanueva was originally convicted of indecent liberties in North Carolina in 1992, was subsequently deported, and was thereafter arrested in North Carolina in 2000, 2004, and 2007. This is strong circumstantial evidence from which the district court could conclude that Centeno-Villanueva illegally reentered the United States after 2000 or 2004 and failed to 3 See United States v. Levenite, 277 F.3d 454, leave the country. 468 (4th Cir. 2002). In the district court, Centeno-Villanueva failed to offer any evidence to rebut the district court s fact finding that he illegally reentered the United States in either 2000 or 2004 and failed to leave after commencing a § 1326 offense. the district court relies on information in the If presentence report (PSR) in making findings, the defendant bears the burden of establishing that the information relied on by the district court in making its findings is incorrect; mere objections are insufficient. United States v. Randall, 171 F.3d 195, 210-11 (4th Cir. 1999). On appeal, Centeno-Villanueva merely asserts that he may have left the country, and therefore, the district court erred. His bare assertion of what may have occurred is insufficient to establish a definite and firm conviction that the district court committed a mistake in applying See Harvey, criminal history points for his 1992 conviction. 532 F.3d at 336-37. district court. legal before Accordingly, we affirm the judgment of the We dispense with oral argument as the facts and contentions the three court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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