US v. Yonel Vasallo, No. 12-4302 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4302 UNITED STATES OF AMERICA, Plaintiff Appellee, v. YONEL REYES VASALLO, a/k/a Yoni, a/k/a Cuba, Defendant - Appellant. No. 12-4443 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL ANTHONY HOY, a/k/a Chi-Town, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00253-TDS-10; 1:11-cr-00375-TDS-1; 1:11-CR-00253-TDS-8) Submitted: March 29, 2013 Decided: April 9, 2013 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Ferris Ridgely Bond, BOND & Kaiser, THE KAISER LAW Appellants. Ripley Rand, Hairston, Deputy Chief, Greensboro, North Carolina, NORMAN, Washington, D.C.; Matthew G. FIRM PLLC, Washington, D.C., for United States Attorney, Sandra J. Assistant United States Attorney, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Michael Anthony Hoy and Yonel Reyes Vasallo pleaded guilty to conspiracy to distribute cocaine and marijuana, in violation guilty of to 21 U.S.C. traveling distribution of § 846 (2006). in interstate marijuana, in § 1952(a)(3) (2006). Vasallo commerce violation also to of pleaded facilitate 18 U.S.C. The district court sentenced Hoy to sixty- four months of imprisonment and sentenced Vasallo to ninety-five months of imprisonment, and they both appeal. For the reasons that follow, we affirm. Hoy first argues on appeal that the district court failed to adequately consider his sentencing argument regarding his community service. We review a sentence for reasonableness, applying discretion standard. 51 see States, an 552 abuse U.S. of 38, (2007); Gall also United Layton, 564 F.3d 330, 335 (4th Cir. 2009). examine the sentence for significant v. United States v. In so doing, we procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider selecting a the [18 sentence U.S.C.] based § on 3553(a) clearly [(2006)] erroneous failing to adequately explain the chosen sentence. U.S. at 51. properly factors, facts, or Gall, 552 We presume on appeal that a sentence within a calculated advisory Guidelines 3 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). When rendering a sentence, the district court must make an individualized assessment based on the facts presented. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks, alterations, and citation omitted). Moreover, where the parties present nonfrivolous reasons for imposing a different sentence than that imposed, a district judge should address the part[ies ] arguments and explain why he has rejected those arguments. and citation omitted). Id. (internal quotation marks We have thoroughly reviewed the record and conclude that the district court adequately explained the sentence and responded to the parties sentencing arguments. Hoy special provide next conditions his argues of that the supervised probation officer court release, with erred in including requested imposing that he financial information and refrain from incurring new credit without his probation officer s approval. As Hoy failed to object to these conditions before the district court, we review this issue for plain error. (1993). See United States v. Olano, 507 U.S. 725, 731-32 To meet this standard, Hoy must demonstrate that there was error, that was plain, and that affected his substantial rights. Id. at 731. Moreover, even if Hoy demonstrates plain 4 error occurred, correct the fairness, this error court unless integrity proceedings. will the or not public discretion to seriously error exercise affect[s] the reputation of judicial Id. at 732 (internal quotation marks and citation omitted). A sentencing court may impose any condition that is reasonably related to the relevant statutory sentencing factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, the need for deterrence and protecting the public from future crimes, and providing the defendant with training or treatment. United States v. Worley, 685 F.3d 404, 407 (4th Cir. 2012); see 18 U.S.C. § 3553(a). While [a] particular restriction does not require an offense-specific nexus, . . . the sentencing court must adequately imposing it. omitted). explain Id. its decision (internal and quotation its marks reasons and for citations After reviewing the record and the relevant legal authorities, we conclude that the district court did not plainly err in imposing these special conditions of supervised release. Vasallo plainly erred in argues on applying appeal a that two-level the district enhancement court under the Guidelines for use of a special skill based on his use of a commercial truck driving license to commit the offense. As Vasallo failed to object to the Guidelines calculations below, 5 we review this issue for plain error. See United States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011). Under USSG § 3B1.3, if in the defendant used a special skill a manner that significantly facilitated the commission or concealment of the offense, a court levels. The shall central increase purpose the of offense § 3B1.3 level is to by two penalize defendants who take advantage of a position that provides them with the freedom to commit a difficult-to-detect wrong. Brack, 651 F.3d at 393 (internal quotation marks and citation omitted). We have reviewed the relevant legal authorities and conclude that Vasallo has failed to demonstrate that the district court plainly erred in applying the enhancement. See Brack, 651 F.3d at 392 ( An error is plain when it is obvious or clear under current law. ) (citation omitted). Vasallo next argues that the district court erred in failing to consider the disparities between defendants sentenced in districts with fast-track sentencing offenses and those without such programs. programs for drug In United States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006), however, we found that such disparities are not unwarranted disparities. U.S.C. § 3553(a)(6). Therefore, we conclude that See 18 Vasallo s argument is without merit. Finally, substantively Vasallo unreasonable. argues The 6 that his district sentence court is sentenced Vasallo within the advisory Guidelines range and we therefore apply a presumption of reasonableness to that sentence. We conclude that Vasallo has failed to overcome that presumption. Accordingly, we affirm the judgments of the district court. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. AFFIRMED 7

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