US v. Alex Pineda-Mendez, No. 09-4536 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4536 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEX PINEDA-MENDEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00517-REP-1) Submitted: April 8, 2010 Decided: July 1, 2010 Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, S. David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alex Pineda-Mendez pled guilty to illegal reentry after previously being deported following a conviction for an aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2006). The court varied upward from the guideline range and imposed a sentence of seventy-two sentence, months imprisonment. contending that it Pineda-Mendez is appeals procedurally his unreasonable because the district court (1) failed to explain the extent of the variance; (2) imposed a sentence greater than necessary to promote deterrence; (3) reached an unsupported conclusion that he was a drug dealer; sentencing disparity. and (4) failed to avoid unwarranted Although the government suggests that we should review the issue for plain error, Pineda-Mendez properly preserved the issue guideline sentence. (4th Cir. 2010). by arguing at sentencing for a within- United States v. Lynn, 592 F.3d 572, 577-78 For the reasons explained below, we affirm the sentence. The government requested a variance from the advisory guideline range of 37-46 months to ninety months based on Pineda-Mendez repeated illegal entries, his failure to comply with court orders relating to prior criminal convictions, the danger he presented to the public, deterred by previous sentences. sentence above the guideline his failure to be Pineda-Mendez argued that a range 2 and would be greater than necessary. He asserted that he returned after his last deportation only because his father had suffered traumatic brain damage from an illness and he needed to earn money to pay the medical expenses. At the sentencing hearing, defense counsel presented some documentation concerning Pineda-Mendez father s condition and argued that Pineda-Mendez had not fulfilled the terms of prior probationary sentences because he had been deported or was in custody, rather than because of disregard for the court s orders. Pineda-Mendez had sentence Defense illegal for served counsel almost reentry, all also of rather pointed his than out prior one year that two-year as the government had argued. Before imposing sentence, the district court observed that times Pineda-Mendez and had had received entered the the country illegally maximum federal sentence several for his prior illegal reentry, as well as lenient treatment in the state courts for other offenses. The court noted that Pineda-Mendez showed a pattern of entering, drug dealing, and re-entry and drug dealing in the past. claimed that he did not The court noted that Pineda-Mendez use cocaine, but had recently been convicted of possessing cocaine, from which the court inferred that Pineda-Mendez possessed the cocaine with the intention of selling it. 3 The court stated that the sentence must be one that promoted respect for law, deterred Pineda-Mendez from violating the immigration laws, and protected the public from his criminal conduct. range The court decided that a sentence within the guideline would not be sentencing statute. adequate to achieve the goals of the The court then stated I believe that the sentence to be imposed here serves the purpose of providing a sentence that is sufficient but not greater than necessary to provide deterrence, to provide punishment, to promote respect for the law, and to protect the public from the defendant s . . . propensity to commit illegal activities, and pursuant to 18 U.S.C. Section 3553(a) and having considered the guidelines only as advisory and having determined that a variance is appropriate, it is the judgment of the Court that the defendant, Alex Pineda-Mendez, is hereby committed to the custody of the United States Bureau of Prisons . . . for a term of 72 months. A sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; see also Lynn, 592 F.3d at 575. district court properly After determining whether the calculated the defendant s advisory guideline range, this court must decide whether the district court considered the § 3553(a) factors, analyzed the arguments presented by the selected sentence. 325, 330 (4th parties, and sufficiently explained the Id.; see United States v. Carter, 564 F.3d Cir. 2009) (holding 4 that, while the individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case . . . and review ). [be] adequate to permit appellate Properly preserved claims of procedural error are subject to harmless error review. the meaningful sentence is free of Lynn, 592 F.3d at 576. significant procedural error, If the appellate court reviews the substantive reasonableness of the sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Here, range and the court considered properly the calculated guideline factors, § 3553(a) the focusing particularly on the nature and circumstances of the offense, Pineda-Mendez sentence to history promote and characteristics, respect for the the law, need for afford the adequate deterrence to Pineda-Mendez, and protect the public from his criminal activity. The court responded to the arguments of the parties, against rejecting for and Pineda-Mendez a variance contention that sentence, he implicitly returned to the United States only to earn money to pay for his father s medical expenses. variance The was court explained necessary because that it believed Pineda-Mendez had an upward not been finding that deterred by prior sentences. We conclude that the district court s Pineda-Mendez had regularly engaged in drug dealing when he was 5 in the United States was supported by the record. In addition, the district court consider[ed] the extent of the deviation and ensure[d] that the justification [was] sufficiently compelling to support the degree of the variance. Lynn, 592 F.3d at 582. The court did not explain why it chose a sentence of seventy-two months, but it did explain that a sentence within the guidelines would not promote defendant from respect violating for the the law, . . . immigration keep[] law . . . the [or] protect[] the people of this country from the crimes that he commits th[e] when he s defendant s here illegally. history and Thus the after record considering that he ha[d] assembled, the court determined that a sentence of seventy-two months would be sufficient but not greater than necessary to satisfy the objectives of the sentencing statute. This deliberation is sufficient to satisfy Lynn. Even assuming that the court s explanation was Under insufficient, any error here was harmless under Lynn. harmless error review, the government may avoid reversal if the error did influence not on assurance, have a the result . . . that consideration of affected sentence the substantial [the and we the and injurious can[] say district defendant s] imposed. citations and quotation marks omitted). 6 court s arguments 592 F.3d with would at 585 effect . . . or fair explicit not have (internal In Lynn, we determined that the [g]iven government the failed strength of to Lynn s prove harmlessness arguments for a because, different sentence, we [could not] say with any fair assurance that the district court s explicit consideration of those arguments would not have affected the sentence imposed. Id. By contrast, the evidence suggesting harmless error in the present case is significantly stronger than it was in Lynn for two reasons. First, even assuming that the district court committed procedural error in failing to explain its rejection of Pineda-Mendez s argument for a within-guideline sentence, the record in this case leaves no doubt that the district court considered his argument in the context of applying the § 3553(a) factors. The court listened arguments, and thereafter to stated the that parties it had statements arrived at and the seventy-two-month sentence by considering all of the § 3553(a) factors, emphasizing the need for deterrence. Second, unlike the sentencing arguments presented by the defendant in Lynn, the arguments that Pineda-Mendez sentence were very weak. made for a within-guideline He had entered the country illegally several times, and his record showed a pattern of entering, drug dealing, and re-entry and drug dealing. Moreover, his argument for a within-guideline sentence amounted to a claim that, if his record was severe, it was only because he needed to enter this country to provide for his family in Honduras. 7 But certainly that state of affairs is not atypical for a defendant, and Pineda-Mendez produced no evidence that his circumstances excused repeated dealing, so instances as to of illegal require a immigration and within-guideline drug- sentence. Consequently, we conclude that any error here was harmless. We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 8
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