US v. Ana Rodriguez, No. 10-4972 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4972 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANA RODRIGUEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (4:10-cr-00025-FL-1) Submitted: May 31, 2011 Decided: June 22, 2011 Before NIEMEYER, GREGORY, and DIAZ, 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 Affirmed by unpublished per curiam opinion.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. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ana Rodriguez appeals from her eighteen-month sentence imposed upon revocation of her supervised release. On appeal, she asserts that her sentence is procedurally and substantively unreasonable. We affirm. Rodriguez contends that her sentence was procedurally unreasonable for three reasons. First, she argues that the court did not provide sufficient reasoning for its sentence. Second, she maintains that the court relied on a nonmandatory Guidelines policy statement to run the violation sentence consecutive to the sentence on new criminal conduct alleged in a separate North Carolina indictment. And third, Rodriguez asserts that the court improperly used the revocation sentence to punish her for the new criminal conduct. Rodriguez also states on appeal that the sentence imposed exceeded a term of imprisonment sufficient but not greater than necessary to achieve the purposes of sentencing. A release sentence should statutory be maximum imposed affirmed and is after if not it revocation is plainly within of supervised the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In making this determination, the court first considers whether the sentence is unreasonable. Id. at 438. This initial inquiry takes a more deferential appellate posture concerning issues of 2 fact and the exercise of discretion than reasonableness review for guidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). follow[s] generally In making its review, the court the procedural and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some necessary modifications to take into account the sentences. unique of supervised release sentence procedurally imposed reasonable Seven policy if upon the statements revocation district and the of court 18 3583(e) (2006); Crudup, 461 F.3d at release considered U.S.C. (2006) factors that it is permitted to consider. § revocation Crudup, 461 F.3d at 438-39. A Chapter nature 438-40. § is the 3553(a) See 18 U.S.C. A sentence imposed upon revocation of release is substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. Crudup, 461 F.3d at 440. A reviewing court should affirm if the sentence is not unreasonable. Only if a unreasonable sentence will the plainly unreasonable. is found court Id. procedurally decide whether or the Id. at 439. substantively sentence is [T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. 3 Id. When imposing sentence, the district court must provide individualized reasoning: The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking authority. . . . Where the defendant . . . presents nonfrivolous reasons for imposing a different sentence than that set forth in the advisory Guidelines, a district judge should address the party s arguments and explain why he has rejected those arguments. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The Carter rationale applies to revocation hearings; however, [a] court need not revocation be as sentence conviction sentence. detailed as it or must specific be when when imposing imposing a a post United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). Here, the district court considered Rodriguez s argument for a concurrent sentence and rejected it. noted that the concurrently criminal is its no to run consecutively conduct exercising There or decision was within discretion error on to its the the revocation sentence discretion to impose this basis. a The court and for the that consecutive The sentence court new it was sentence. explicitly considered the Guidelines range and the § 3553 factors that it was permitted to consider. Although Rodriguez argues that her sentence punishes her for the new criminal conduct alleged in the North Carolina indictment, 4 the court did not make any statements in this regard. This speculative argument does not support a procedural sentencing error. As such, we conclude that Rodriguez s sentence was procedurally reasonable. We next turn Rodriguez s sentence. to the substantive reasonableness of Given the court s broad discretion, we conclude that the reasons stated were substantively sufficient. The court rejected Rodriguez s request for a concurrent sentence after hearing argument and considering Rodriguez s concession that she continued the cigarette trafficking conspiracy while on supervised release. Thus, imposition of the eighteen-month sentence for Rodriguez s violation of supervised release was not an abuse of discretion. Moreover, Rodriguez challenging her sentence. faces a heavy burden in Even if she could establish that her sentence was unreasonable, she would still need to show that it was plainly unreasonable. A sentence is plainly unreasonable if it run[s] afoul of clearly settled law. at 548. Thompson, 595 F.3d Rodriguez has not cited clearly settled law that was violated by the district court s sentence, and the record does not reveal any such obvious error. We revocation therefore of supervised affirm the release. sentence We imposed dispense with upon oral argument because the facts and legal contentions are adequately 5 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6
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