US v. German Mendoza, No. 10-5249 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5249 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERMAN CHANG MENDOZA, a/k/a Doloteo Arrollo Blanco, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00250-WO-1) Submitted: June 30, 2011 Before MOTZ and Circuit Judge. DIAZ, Decided: Circuit Judges, and July 18, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Louis C. Allen III, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Graham T. Green, Assistant United States Attorney, WinstonSalem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to the terms of his written plea agreement, German Chang Mendoza pleaded guilty to interfering with commerce by robbery, in violation of 18 U.S.C. § 1951(a) (2006) ( Count One ), and brandishing a firearm during and in relation to a crime of violence, to wit: robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2006) ( Count sentenced to total Mendoza a Two ). of 132 The district months court imprisonment, consisting of forty-eight months on Count One and eighty-four months on Count Two, to be served consecutively. In determining the sentence for Count One, the district court varied upward from the high end of Mendoza s sentencing range under the advisory Sentencing Guidelines by eleven months. On appeal, Mendoza challenges only reasonableness of this upward variance. record and discern no abuse court s sentencing decision. This applying States, an 552 court abuse U.S. of 38, of the We have reviewed the discretion in the review requires district Accordingly, we affirm. reviews a sentence for discretion standard. 51 see (2007); also reasonableness, Gall United Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011). this substantive appellate consideration of v. States v. Ordinarily, both procedural and substantive reasonableness of a sentence. 552 U.S. at 51. United the Gall, However, because Mendoza does not challenge 2 the procedural reasonableness of his sentence (Appellant s Br. at 8 n.1), we need only consider whether Mendoza s sentence is substantively reasonable. When reviewing the substantive reasonableness of a sentence, this court assesses whether the District Judge abused his discretion in determining that the [18 U.S.C.] § 3553(a) [(2006)] factors supported [the sentence] and justified substantial deviation from the Guidelines range. U.S. at 56. a Gall, 552 The court must take 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 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). When the district court exercises its discretion and varies from the defendant s advisory Guidelines range, it must explain its reasons for doing so. United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.), cert. denied, __ S. Ct. __, 2011 WL 1671037 (U.S. May 31, 2011) (No. 10-10257). Although the district court must ensure that its justification supports the degree of the variance, it need not make a finding of extraordinary circumstances in order to impose a sentence outside the defendant s Guidelines range. United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 47). 3 Mendoza contends that his variance sentence is substantively unreasonable because it is greater than necessary to achieve the statutory aims of sentencing and because the district court failed to appropriately weigh those 18 U.S.C. § 3553(a) factors that Guidelines sentence. supported his request for a within- We disagree. In explaining its reasons for the upward variance in Count One, the district court identified factors that supported its decision. several § 3553(a) Specifically, the court cited Mendoza s obstructionist conduct, which included providing a false name and date of birth to the police and minimizing the seriousness of the offense, and Mendoza s leadership role in the robbery, as relevant to 18 U.S.C. § 3553(a)(1) the nature and circumstances of the offense and found these factors were unaccounted for in the Guidelines calculation for Count One. The court further opined that the robbery was very violent, in that Mendoza had pointed his firearm at a shop clerk s head, see 18 U.S.C. § 3553(a)(2)(A) (sentence should reflect the seriousness of the offense), and that this too was not accounted for in the Guidelines calculation. Finally, the court addressed Mendoza s personal history and characteristics, noting that it was sympathetic to Mendoza s lack of a stable family environment and his concluded, substance however, abuse that problems. the danger 4 The court Mendoza ultimately posed to the community evidenced by the fact that, despite his relatively young age (twenty-five), Mendoza had a history of using aliases, two convictions conviction for for driving assault with while a impaired, deadly weapon and a prior trumped leniency that these factors might otherwise support. any Thus, the court opined that an upward variance was necessary to protect the public from any further crime Mendoza may commit. U.S.C. § 3553(a)(2)(C). well-reasoned See 18 We thus conclude the district court s explanation amply justified the extent of the discretion in the variance it imposed. Because there was no abuse of district court s reasoning in this case, we will defer to it. See Diosdado Star, court s decision 630 to F.3d impose a at 366 67 sentence (holding six years sentencing longer than advisory Guidelines range was reasonable, because district court employed § 3553 based reasoning to justify the variance); see also United States v. Jeffrey, 631 F.3d 669, 679 (4th Cir.) ( [D]istrict determining courts the have weight to extremely be given broad each discretion of the § when 3553(a) factors. ), petition for cert. filed, __ U.S.L.W. __ (U.S. June 2, 2011) sentence. legal (No. 10-10894). We therefore affirm Mendoza s We dispense with oral argument because the facts and 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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