US v. Dario Mendoza-Mendoza, No. 10-4556 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4556 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARIO MENDOZA-MENDOZA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (4:08-cr-00032-BR-1) Submitted: January 28, 2011 Decided: February 18, 2011 Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. MayParker, Sebastian Kielmanovich, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In July 2008, Dario Mendoza-Mendoza pled guilty to illegally reentering the United States after being removed, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). Mendoza-Mendoza was sentenced to forty-six months imprisonment. On appeal, this court vacated his sentence and remanded the case to the See United States v. Mendoza- district court for resentencing. Mendoza, 597 F.3d 212 (4th Cir. 2010). At resentencing, the district court restated MendozaMendoza s Guidelines calculations: twenty-one, combined with a his total offense level of criminal history category III, yielded an advisory sentencing range of forty-six to fifty-seven months imprisonment. Although Mendoza-Mendoza s base offense level was eight, it was increased sixteen levels because of his prior North Carolina convictions for taking indecent liberties with a child, which qualified as a crime of violence. Sentencing Guidelines (2007). After Manual analyzing ( USSG ) the 18 § 2L1.2(a), U.S.C. See U.S. (b)(1)(A) § 3553(a) (2006) sentencing factors and considering Mendoza-Mendoza s arguments for a below-Guidelines sentenced sentence, Mendoza-Mendoza to the forty-six district months court again imprisonment. This appeal timely followed. On appeal, Mendoza-Mendoza reasonableness of his sentence. challenges the With regard to the procedural 2 reasonableness component, court to failed Mendoza-Mendoza properly consider argues the the unique district mitigating circumstances involved in this case in conducting its analysis of the § 3553(a) sentencing factors. reasonableness issue, As to the substantive Mendoza-Mendoza first argues USSG § 2L1.2(b)(1)(A) is not entitled to deference because it was enacted without deliberation or empirical justification, results in a sentence greater than necessary. next contends the offense conduct. forty-six-month sentence and Mendoza-Mendoza over-punishes his For the reasons that follow, we reject these contentions and affirm. This applying States, an 552 court abuse U.S. reviews of 38, a sentence for discretion standard. 51 see reasonableness, (2007); Gall also Llamas, 599 F.3d 381, 387 (4th Cir. 2010). United v. United States v. This review requires appellate consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51. In determining procedural reasonableness, we consider whether the district court properly calculated the defendant s advisory analyzed Guidelines any range, considered arguments presented the § 3553(a) by the sufficiently explained the selected sentence. of whether the within-Guidelines district court sentence, it imposes must 3 an place parties, Id. above, on factors, the and Regardless below, or record an individualized assessment based on the particular facts of the case before it. (4th Cir. 2009) United States v. Carter, 564 F.3d 325, 330 (internal quotation marks omitted). If the court finds no significant procedural error, it next assesses the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Morace, 594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). In his reasonableness of sole argument pertaining sentence, 1 his to the Mendoza-Mendoza procedural argues the district court erred in its analysis of the § 3553(a) sentencing factors. Specifically, Mendoza-Mendoza asserts the district court should have afforded more mitigatory weight to the fact that he has maintained a long-term relationship with the victim of his prior criminal conduct, Heather Rowe. The record establishes that the district court considered the relationship between Mendoza-Mendoza and Rowe in rendering its sentencing decision, but ultimately determined it was an insufficient basis for sentencing Mendoza-Mendoza below his properly calculated Guidelines range. 1 At its core, Mendoza- Mendoza-Mendoza does not contest the calculation of his advisory Guidelines range. 4 Mendoza s argument asks this court to substitute its judgment for that of the district court. This we will not do. Accordingly, we hold Mendoza-Mendoza s sentence is procedurally reasonable. We next consider the substantive reasonableness of the imposed sentence. In conducting substantive reasonableness review, this court must take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a Gall, 552 U.S. at 51; see also presumption of reasonableness. United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). Mendoza-Mendoza first contends this court should not afford a presumption of reasonableness to the within-Guidelines sentence he received, because the sixteen-level enhancement authorized by USSG § 2L1.2(b)(1)(A) is an arbitrary guideline, enacted without deliberation or should not be afforded deference. empirical justification, that This argument amounts to a policy attack on the applicable enhancement provision, and we conclude it is without merit. 2 2 Accord United States v. This court has previously rejected this very argument in several unpublished, non-binding decisions. See United States v. Ibarra-Zelaya, 278 F. App x 290, 290-91 (4th Cir. 2008) (holding presumption of reasonableness not overcome simply because district court failed to reject policy of guideline); (Continued) 5 Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.) (explaining that, although district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly[,] . . . if they do not, we will not second-guess their decisions under a more lenient standard simply because the particular Guideline is not empirically-based ), cert. denied, 130 S. Ct. 192 (2009). Finally, Mendoza-Mendoza argues the forty-six-month sentence over-punishes his conduct his third illegal entry into the United States and thus is substantively unreasonable. Mendoza-Mendoza s argument asks this court to overlook the fact that his sentencing range was impacted, primarily, by his status of having been removed following a conviction for a crime of violence, and instead to view his offense conduct in isolation. We decline Mendoza s this request. arguments do Further, not we overcome hold the that Mendoza- presumption of reasonableness afforded his within-Guidelines sentence. For court s the amended foregoing criminal reasons, judgment. we We affirm the dispense district with oral argument because the facts and legal contentions are adequately see also United States v. Palacios-Herrera, No. 10-4138, 2010 WL 4950000 (4th Cir. Dec. 3, 2010) (same); United States v. Jimenez-Hernandez, 311 F. App x 578, 579 (4th Cir. 2008) (same), cert. denied, 129 S. Ct. 1598 (2009). 6 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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