US v. Jose Zambrano, No. 10-4135 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4135 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE ZAVALA ZAMBRANO, a/k/a Josue Sanbrano, Mariaga-Padillas, a/k/a Jamie Padillas, a/k/a Jamie Defendant - Appellant. No. 10-4136 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LUIS ZAVALA-SAMBRANO, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:09-cr-00236-HEH-1; 3:09-cr-00424-HEH-1) Submitted: May 31, 2011 Decided: Before SHEDD, DAVIS, and WYNN, Circuit Judges. June 14, 2011 Affirmed by unpublished per curiam opinion. Sherri A. Thaxton, SHERRI A. THAXTON, P.C., Richmond, Virginia, for Appellant. Stephen David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Jose Zavala Zambrano * appeals from the thirty-eight-month sentence imposed upon his guilty plea to illegally reentering the United States after having been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and the revocation of his supervised release and twelve-month term of imprisonment. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in each appeal. In the illegal reentry case, counsel questions whether the district court committed a procedural sentencing error when it increased aggravated Zambrano s felony based base on offense his domestic assault and battery. release case, counsel level prior by state eight for conviction an for In the revocation of supervised questions whether there was sufficient evidence to find Zambrano violated a condition of his supervised release. Counsel concludes, however, meritorious issues in either appeal. that there are no Zambrano filed a pro se supplemental brief arguing that the district court committed a procedural sentencing error in imposing the eight-level increase for a prior aggravated felony conviction. * Zambrano relies on a Although the Appellant names in these appeals are spelled differently, both names refer to the same individual, to whom we refer as Zambrano. 3 recently decided Supreme Court Holder, 130 S. Ct. 2577 (2010). case, Carachuri-Rosendo v. Finding no error we affirm. We review a sentence for reasonableness, applying an Gall v. United States, 552 U.S. abuse of discretion standard. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). for significant calculate (or In so doing, we first examine the sentence procedural improperly error, including calculating) failing the to [Sentencing] Guidelines range, treating the Guidelines as mandatory, failing to consider selecting a the [18 sentence U.S.C.] based § 3553(a) on clearly [(2006)] erroneous factors, facts, Gall, 552 failing to adequately explain the chosen sentence. U.S. at 51. Finally, reasonableness of the we consider sentence imposed. the or substantive United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51). We presume on appeal that a sentence within a properly calculated advisory Guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within Guidelines sentence). We procedurally first conclude reasonable. that Under Zambrano s U.S. sentence Sentencing is Guidelines Manual ( USSG ) § 2L1.2(b)(1)(c) (2009), the base offense level of eight for illegal reentry is increased by eight additional 4 levels for a prior conviction for an aggravated felony. An aggravated felony has the meaning given that term in 8 U.S.C. § 1101(a)(43) (2006). USSG § 2L1.2 n.3(A). Under 8 U.S.C. § 1101(a)(43)(F) (2006), an aggravated felony is a crime of violence (as defined in [18 U.S.C. § 16 (2006)]) for which the term of imprisonment [is] at least one year. A crime of violence is defined, as relevant here, as an offense that has as an element the use, attempted use, or threatened use of force against the person or property of another. In when Carachuri-Rosendo, determining what the constitutes 18 U.S.C. § 16. Supreme an Court aggravated held that, felony, the state offense of record cannot be enhanced ex post by looking at facts outside the aggravated felony. Court also held offense of conviction to make it Carachuri-Rosendo, 130 S. Ct. at 2586. that penalties for an aggravated an The felony conviction only apply when the noncitizen has actually been convicted of an aggravated felony not when he merely could Id. (internal have been convicted of a felony but was not. quotation assault marks and and alteration omitted). battery conviction was a crime Here, of Zambrano s violence as defined by 18 U.S.C. § 16, and he received a sentence of at least one year. The court did not need to reach beyond the facts of conviction, as was the case in Carachuri-Rosendo, to 5 find that Zambrano s aggravated felony. conviction fit the definition of an Therefore, this claim fails. Thus, in sentencing Zambrano for his illegal reentry conviction, the district court properly calculated the advisory Guidelines range, including the eight-level enhancement for aggravated felon status, considered the § 3553(a) factors, and explained its chosen sentence. F.3d 325, 330 (4th Cir. See United States v. Carter, 564 2009) (district court must conduct individualized assessment based on the particular facts of each case, whether sentence is above, below, or within the Guidelines range). The Moreover, court the sentenced imprisonment, within sentence the substantively reasonable. to Zambrano is thirty-eight months advisory Guidelines range, based of on Zambrano s extensive criminal history during the time he was illegally present in the United States. The court also stated that it believed that the sentence was sufficient, but no longer than necessary, to promote respect for the law and to deter any further illegal entries. Under these circumstances, Zambrano cannot overcome the presumption of reasonableness accorded his within-Guidelines sentence. We next turn supervised release. supervised evidence release that the to the appeal from the revocation of The district court may revoke a term of when it finds defendant has 6 by a preponderance violated a of the condition of supervised release. 18 U.S.C. § 3583(e)(3) (2006). A condition of Zambrano s supervised release was that he not reenter the United States illegally. Zambrano was charged with a supervised release violation based on his guilty plea to the charge that he reentered the United States illegally. At the revocation of supervised release hearing, Zambrano admitted the violation based on this guilty plea, and the court revoked his supervised release. We conclude that there was sufficient evidence to prove by a preponderance that Zambrano violated a mandatory condition of his supervised release. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the judgment of the district court as to the illegal reentry conviction and sentence in No. 10-4135 and the judgment revoking supervised release and imposing a twelve-month sentence in No. 10-4136. Counsel has filed a motion to withdraw from further representation. inform Zambrano, Supreme Court in of the This court requires that counsel writing, United of the States right for to further petition the review. If Zambrano requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on 7 Zambrano. We therefore deny the motion to withdraw at this time. We affirm the judgments of the district court in Nos. 10-4135 and 10-4136. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 8
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