US v. Jose Miranda-Martinez, No. 12-4485 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4485 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE JESUS MIRANDA-MARTINEZ, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00385-CCE-1) Submitted: January 18, 2013 Decided: January 24, 2013 Before DUNCAN, DAVIS, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Joanna G. McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Jesus Miranda-Martinez ( Miranda ) pled guilty to illegally reentering the United States after having been removed following conviction for a § 1326(a), (b)(1) (2006). felony, in violation of 8 U.S.C. The district court sentenced Miranda to thirty-nine months imprisonment, a sentence resulting from the court granting an upward departure under U.S. Sentencing Guidelines advisory Manual Guidelines imprisonment. arguing ( USSG ) that imposing it. On § 4A1.3(a), range of thirty appeal, district the Miranda court p.s. to (2011), from thirty-seven challenges abused its this his months sentence, discretion in We affirm. As we have explained, no matter what provides the basis for a deviation from the Guidelines range[,] we review the resulting sentence only for reasonableness. Evans, 526 F.3d 155, 164 (4th Cir. 2008). an abuse-of-discretion 552 U.S. 38, 51 decision to consider whether standard. (2007). depart from the In a In doing so, we apply Gall v. assessing a defendant s sentencing court United States v. United sentencing Guidelines acted States, court s range, reasonably we both with respect to its decision to impose such a sentence and with respect range. to the extent of the divergence from the sentencing United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). We will find a sentence to be unreasonable 2 if the sentencing court provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside the properly calculated advisory sentencing range. Miranda argues that the district court Id. erred in imposing the upward departure because there is nothing unusual in his criminal history warranting imposition of the departure and because the court erroneously considered his prior arrest record, in violation of USSG § 4A1.3(a)(3), p.s. However, because Miranda fails to present these arguments in accordance with Fed. R. App. argument . . . must the reasons for P. 28(a)(9)(A) contain . . . them, with ( [T]he appellant s citations to [appellant s] contentions the and authorities and parts of the record on which the appellant relies. ), we deem them waived. Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009). Next, we reject on review for plain error Miranda s challenge premised on sentences prior for his the district misdemeanor court s consideration convictions not of assigned criminal history points on account of the age and nature of the convictions to the court s imposition of the upward departure. The district court properly relied on the sentences Miranda received for misdemeanor offenses for which he was assigned no criminal history points in determining that an upward departure was warranted. USSG § 4A1.3(a)(2)(A), p.s. 3 Finally, Miranda challenges the reasonableness of the district sentence. the court s to impose the thirty-nine-month However, we conclude after review of the record that court s Miranda s decision sentencing long history decision of is reasonable recidivism, which in light reflects of his disrespect for the law, and the need for the sentence to protect the public. The court s consideration of relevant 18 U.S.C. § 3553(a) (2006) factors and articulation of its reasons for departing from the Guidelines range support our decision to defer to the district court s determination as to the extent of the departure. See United States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (affirming substantive reasonableness of variance sentence six years greater than the Guidelines range because it was based on the district court s examination of relevant § 3553(a) factors); see also United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) ( All that matters is that the sentence imposed be reasonable in relation to the package of reasons given by the court. ). Accordingly, we affirm the district court s judgment. We dispense with oral argument 4 because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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