US v. Alejandro Martinez-Barrera, No. 13-4073 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4073 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO MARTINEZ-BARRERA, Defendant - Appellant. No. 13-4074 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO MARTINEZ-BARRERA, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:12-cr-00281-BO-1; 5:10-cr-00389-BO-1) Submitted: September 10, 2013 Decided: Before AGEE, WYNN, and DIAZ, Circuit Judges. September 23, 2013 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Alejandro Martinez-Barrera pled guilty, without a plea agreement, to illegal reentry by an aggravated violation of 8 U.S.C. § 1326(a), (b)(2) (2006). criminal conduct, Martinez-Barrera s petitioned the to release, which conviction court court followed for illegal conducted revoke a reentry of by probation imprisonment an Martinez-Barrera s aggravated sentencing in Because of this Martinez-Barrera s term felon, officer supervised on a prior felon. The and revocation hearings in the same proceeding and sentenced Martinez-Barrera to seventy months conviction, revoked imprisonment his for supervised the release, illegal and reentry imposed a consecutive revocation sentence of twelve months imprisonment. Martinez-Barrera appeals both sentences on the ground that they are substantively unreasonable. We affirm. We review Martinez-Barrera s sentence for his illegal reentry conviction under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). reviewing a examine[] the sentence totality for of substantive the reasonableness, circumstances and, if When we the sentence is within the properly-calculated Guidelines range, as it is here, we apply a presumption on appeal that the sentence is substantively reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010). 3 Such a presumption is rebutted only unreasonable if the when defendant measured [(2006)] factors. shows against that the [18 the sentence U.S.C.] is § 3553(a) United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Martinez-Barrera disputes this standard of review and argues that his sentence should not be afforded a presumption of reasonableness because the sixteen-level enhancement he received pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2L1.2(b)(1)(A) (2012) is not based on an empirical study by the Sentencing Commission, unfairly punishes defendants for prior conduct that is already accounted for in their criminal history scores, recidivism. and does not accurately reflect the risk of These arguments amount to a policy attack on USSG § 2L1.2(b)(1)(A), which we conclude, as we have done repeatedly, is without merit. See, e.g., United States v. Romero-Martinez, 500 F. App x 215, 216 n.* (4th Cir. 2012) (No. 12-4333); United States v. (rejecting Crawford, argument 18 that F.3d 1173, 1178-80 sixteen-level (4th enhancement Cir. 1994) results in impermissible double-counting); cf. United States v. MondragonSantiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (recognizing that appellate presumption courts [of are require[d reasonableness] empirically-grounded accordingly). not Guidelines for to] sentences and discard[] based applying on the non- presumption We similarly reject Martinez-Barrera s argument 4 that, because the Sentencing Commission did not base the sixteen-level enhancement on empirical data, its determinations are not entitled to deference. After reviewing the record and the parties briefs, we conclude that Martinez-Barrera s Guidelines sentence is not seventy-month, substantively within- unreasonable, as he fails to overcome the appellate presumption of reasonableness afforded arguments his sentence. apart Indeed, from § 2L1.2(b)(1)(A). the Martinez-Barrera meritless policy makes attacks no on We also note that Martinez-Barrera has a long history of reentering the United States illegally and, while in the United States, has committed several drug-related offenses. Moreover, we conclude that it was not unreasonable for the district court to distrust Martinez-Barrera s assurance that he will not reenter the United States, as he already had made and broken that promise. Barrera s sentence Accordingly, we conclude that Martinezfor his illegal reentry conviction was substantively reasonable, as it was not greater than necessary to accomplish the goals of § 3553(a). Next, sentence, in we take[] examining a Martinez-Barrera s more deferential revocation appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for [G]uidelines sentences. United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal 5 quotation marks omitted). A sentence imposed upon revocation of supervised release should statutory maximum and States v. Crudup, 461 be not affirmed plainly F.3d 433, if it is within unreasonable. 437 (4th Cir. the United 2006). In reviewing a revocation sentence, we first decide whether the sentence is unreasonable, following the same general principles we apply to our review of original sentences. if we find substantively that a sentence unreasonable sentence is plainly so. will is we Id. at 438. either Only procedurally determine whether or the Id. at 439. A revocation sentence is substantively reasonable if the district court states a proper basis for concluding that the defendant should receive the sentence imposed. Id. at 440. A defendant s breach of trust is a perfectly appropriate basis and, in fact, the encourage courts States v. Bennett, principal to ground 698 F.3d basis on which revocation 194, denied, 133 S. Ct. 1506 (2013). 202 the Guidelines sentences. (4th Cir. United 2012), cert. [T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. Crudup, 461 F.3d at 439 (internal quotation marks omitted). After reviewing the record, it is apparent that the district court imposed Martinez-Barrera s revocation sentence because he breached the court s trust a permissible factor. 6 Moreover, the twelve-month statutory maximum. the district revocation sentence is within See 18 U.S.C. § 3583(e)(3) (2006). court s broad discretion to revoke the Given supervised release and impose a term of imprisonment up to the statutory maximum, we conclude that Martinez-Barrera s revocation sentence is substantively reasonable. See Crudup, 461 F.3d at 439 (stating that, if sentence is reasonable, inquiry ends). Accordingly, we affirm the district court s judgments. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 7

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