US v. Juan Velasquez-Penuelas, No. 12-4022 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4022 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN CARLOS Penuelas, VELASQUEZ-PENUELAS, a/k/a Diego Martinez Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (4:11-cr-00080-F-1) Submitted: August 31, 2012 Decided: September 11, 2012 Before NIEMEYER, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, 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 Unpublished opinions are not binding precedent in this circuit.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: Without the benefit of a written plea agreement, Juan Carlos Velasquez-Penuelas, a native and citizen of Mexico, pled guilty to illegally reentering the United States following his removal as § 1326(a), an aggravated (b)(2) felon, (2006). Velasquez-Penuelas to in The seventy violation district months bottom of his advisory sentencing range. of 8 court U.S.C. sentenced imprisonment, at the On appeal, Velasquez- Penuelas challenges only the procedural reasonableness of his sentence. Specifically, Velasquez-Penuelas asserts that the district court committed reversible procedural error by failing to address his nonfrivolous arguments in favor of a downward variance and failing to state, on the record, the reasons for the sentence it imposed. For the following reasons, we affirm. This court applies an abuse of discretion standard of review as to this claim. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Diosdado Star, 630 F.3d 359, 363 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011). Reasonableness review requires appellate consideration of both the procedural Gall, 552 and U.S. substantive at 51. reasonableness In determining of a the sentence. procedural reasonableness of a sentence, we consider whether the district court range, properly calculated considered the 18 the defendant s U.S.C. 2 § advisory 3553(a) (2006) Guidelines factors, analyzed any arguments presented by the sufficiently explained the selected sentence. of whether the district within-Guidelines court sentence, it imposes must parties, Id. an Regardless above, place on and below, record the or an individualized assessment based on the particular facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th (internal Cir. 2009) explanation must be quotation sufficient marks allow to omitted). for The meaningful appellate review, id. (internal quotation marks omitted), such that the appellate court need not guess at the district court s rationale. Id. at 329. Velasquez-Penuelas assigns procedural error to the district court s failure, despite his request for a downward variant sentence, seventy-month to explain sentence. its Because reasons for selecting Velasquez-Penuelas a preserved this issue by arguing for a sentence other than that which he ultimately received, our review is for an abuse of discretion. See United States v. Lynn, 592 F.3d 572, 583 84 (4th Cir. 2010). Based on our review of the sentencing transcript, we agree that the district court s explanation in this case was insufficient, thereby rendering procedurally unreasonable. conclude that Government may the error establish Velasquez-Penuelas sentence Thus, we [must] reverse unless we was harmless. that such 3 a Id. at procedural 576. error The was harmless, and thus avoid remand, by showing that the error did not have a substantial and injurious effect or influence on the result and we can say with fair assurance that the district court s explicit consideration of the defendant s would not have affected the sentence imposed. arguments United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and alterations omitted); see also Lynn, 592 F.3d at 585. Applying this standard to the facts of this case, we conclude that the Government has satisfied its burden of showing that the district court s procedural error was harmless. We first note that, as evidenced by the district court s recitation of Velasquez-Penuelas criminal history and history of illegally entering the United States, the court was plainly familiar with Velasquez-Penuelas § 3553(a) sentencing consideration of background as factors. it Given was the Velasquez-Penuelas relevant to district court s history the and characteristics, coupled with its decision to impose a sentence at the bottom of his advisory Guidelines range, we agree with the Government that any shortcoming in the court s explanation for the sentence imposed is harmless. See United States v. Montes Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (noting that [t]he context surrounding a district court s explanation may imbue it with enough content for us to evaluate both whether the 4 court considered the § 3553(a) factors and whether it did so properly ). The Government s position is further supported by the fact that the arguments Velasquez-Penuelas advanced in favor of a below-Guidelines sentence were less than persuasive, particularly when juxtaposed with the district court s awareness of Velasquez-Penuelas criminal history. chronic recidivism and significant See Boulware, 604 F.3d at 839 40 (explaining that comparative weakness of a defendant s arguments for a lower sentence is one reason to decline to remand a case for further explanation). court Finally, we have little doubt that the district considered downward defense variance, as counsel s this was arguments the only in issue sentencing and it was vigorously contested. (holding adequately that, even explaining if the its district reasons for favor of contested a at See id. at 839 court erred rejecting by not Boulware s argument for a below-guidelines sentence, we are quite confident that the district court undertook that analysis and considered Boulware s argument ). For these reasons, we conclude that, even though the district court individualized might have consideration said of more judgment of the district demonstrate Velasquez-Penuelas remand in this instance is unwarranted. the to court. 5 its arguments, Accordingly, we affirm 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 6
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