US v. Ricardo Lopez-Vera, No. 10-4584 (4th Cir. 2011)
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The court issued a subsequent related opinion or order on May 31, 2011.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4584 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RICARDO LOPEZ-VERA, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:09-cr-00226-TDS-1) Submitted: May 17, 2011 Decided: May 27, 2011 Before KING, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Milton B. Shoaf, Jr., ADDISON & SHOAF, Salisbury, 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 Unpublished opinions are not binding precedent in this circuit.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: In illegally 2003, reentering Ricardo the Lopez-Vera United pleaded States after guilty having to been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326 (a), (b)(2) (2006). The district court sentenced Lopez-Vera to a term of imprisonment followed by supervised release. Subsequently, Lopez-Vera pleaded guilty to illegal reentry and to violating the terms of his supervised release. The district eighty-seven months conviction and supervised release of court sentenced imprisonment eighteen months revocation, for of to be the Lopez-Vera illegal imprisonment served to reentry for the consecutively. Lopez-Vera now appeals and appellate counsel has filed a brief pursuant to questioning Anders v. California, whether the district consecutive terms of imprisonment. 386 court U.S. 738 (1967), erred in imposing Lopez-Vera was informed of his right to file a pro se supplemental brief but has not done so. Finding no error, we affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the sentence for significant procedural error, including failing to 2 calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [(2006)] failing to factors, consider selecting the a [18 sentence U.S.C.] 3553(a) on based § clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. When multiple terms of imprisonment are imposed on a defendant at the same time, . . . the terms may run concurrently or consecutively, 18 U.S.C. § 3584(a) (2006), and the district court must take into account the § 3553(a) factors § 3584(b) (2006). reasonableness in making that decision. 18 U.S.C. Finally, we then consider the substantive of the sentence imposed. United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51). This court presumes 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). Moreover, this court reviews a sentence imposed as a result of a supervised release violation to determine whether the sentence was plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). The first step in this analysis is unreasonable. a determination Id. at of 438. whether This the court, sentence in was determining reasonableness, follows generally the procedural and substantive 3 considerations employed in reviewing original sentences. On review, we will assume a deferential appellate Id. posture concerning issues of fact and the exercise of discretion. Id. at 439. Although a district court must consider the policy statements in Chapter Seven of the Sentencing Guidelines along with the statutory requirements of 18 U.S.C. § 3583 (2006) and § 3553(a), the court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory United States maximum. v. Lewis, Crudup, 424 F.3d (internal quotation marks omitted). 461 F.3d at 239, 244 (2d 439 (quoting Cir. 2005)) If a sentence imposed after a revocation is not unreasonable, we will not proceed to the second prong of the analysis whether the sentence was plainly Crudup, 461 F.3d at 438-39. unreasonable. We have thoroughly reviewed the record and conclude that the sentences imposed by the district court are reasonable, and the court did not err in imposing consecutive terms of imprisonment. not determine whether the revocation We therefore need sentence was plainly unreasonable. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform Lopez-Vera, in 4 writing, of the right to petition United States for further review. the Supreme Court of the If Lopez-Vera 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 Lopez-Vera. 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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