US v. Santos Fernandez, No. 13-4664 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4664 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:08-cr-00134-RJC-DSC-23) Submitted: July 29, 2014 Before TRAXLER, Judges. Chief Judge, Decided: and DIAZ and August 8, 2014 THACKER, Circuit Affirmed by unpublished per curiam opinion. David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Santos Anibal Caballero Fernandez ( Caballero Fernandez ) appeals the sentence imposed following the reversal of one conviction and remaining convictions. the remand for resentencing on his For the reasons that follow, we affirm. A federal grand jury charged Caballero Fernandez and twenty-five other members of the worldwide street gang MS-13 with various gang-related crimes. In Caballero Fernandez s case, a jury convicted him of conspiracy to commit racketeering, in violation possession of of a 18 U.S.C. firearm § an by 1962(d) illegal (2012) alien (Count and One), aiding and abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 2 (2012) (Count Eight), and accessory after the fact to murder in aid of racketeering, in violation of 18 U.S.C. §§ 3, 1959 (2012) (Count Fifty-Three). Fernandez s reversed the conspiracy his ground On appeal, to commit we affirmed racketeering accessory-after-the-fact-to-murder that the evidence was Caballero conviction, conviction insufficient to show on that Caballero Fernandez knew the victim was dead or dying during the relevant time period, and remanded for resentencing. At there were calculations the no in resentencing objections, the hearing, the court supplemental after adopted presentence determining the that Guidelines report ( PSR ), which established a Guidelines range of seventy to eighty-seven 2 months imprisonment. Defense counsel argued for a sentence within this range, noting that the original sentence had been within the original 135 to 168 month Guidelines range. After listening to the parties arguments and Caballero Fernandez s allocution, the district court imposed an upward variance sentence of 135 months on the conspiracy to commit racketeering conviction (Count One) and a concurrent 120 months (the statutory maximum) on the firearm conviction (Count Eight). In this appeal, Caballero Fernandez challenges the district court s finding, for sentencing purposes, that he aided and abetted the murder that was the subject of his reversed accessory-after-the-fact conviction and reasonableness of the upward variance. procedural and substantive discretion standard. (2007). The same the substantive We review a sentence for reasonableness under an abuse of Gall v. United States, 552 U.S. 38, 51 standard applies whether the sentence is inside, just outside, or significantly outside the Guidelines range. (4th United States v. Rivera-Santana, 668 F.3d 95, 100-01 Cir.) (internal citation and cert. denied, 133 S. Ct. 274 (2012). quotation marks omitted), In determining procedural reasonableness, we consider whether the district court properly calculated the defendant s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, selected a 3 sentence supported by the facts, and sufficiently explained the selected sentence. Gall, 552 U.S. at 49-51. If the sentence is free of procedural error, we review it for substantive reasonableness. Id. at 51. Substantive reasonableness examines the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). (4th United States v. Mendoza-Mendoza, 597 F.3d 212, 216 Cir. 2010). Guidelines range, In we reviewing give due any sentence deference to outside the the sentencing court s decision because it has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that [it] has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S. 338, 356 (2007) (alteration in original)). The district court imposed an upward variance sentence based in part on its finding that Caballero involved in the murder of Ulisses Mayo. Fernandez was Caballero Fernandez challenges that finding, emphasizing that Mayo s murder was the subject of his reversed accessory-after-the-fact conviction. A factual finding is clearly erroneous if the reviewing court on the entire evidence is left with 4 the definite and firm conviction that a mistake has been committed. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks omitted). [A] sentencing court may consider uncharged and acquitted conduct in determining a sentence, as long as that conduct is proven by a preponderance of the evidence. United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009). Our review of the record leads us to conclude that the district court did not clearly err in finding by a preponderance of the evidence that Caballero Fernandez aided and abetted the murder. Furthermore, history and factors, we as relevant characteristics conclude the and to other district Caballero Fernandez s § 3553(a) court did sentencing not err in considering Caballero Fernandez s involvement in the murder in imposing the variance. United States v. Overstreet, 713 F.3d 627, 638 n.14 (11th Cir. 2013); see also United States v. Rhine, 637 F.3d 525, 528 29 (5th Cir. 2011) (holding that a district court may consider criminal activity of a defendant that was not relevant conduct as part of the history of the defendant), cert. denied, 132 S. Ct. 1001 (2012). Next, Caballero Fernandez challenges the extent of the variance. a When the district court imposes either a variance or departure sentencing decision to sentence, court acted impose such this court reasonably a consider[s] both sentence 5 and whether the with respect to its with respect to the extent of the divergence from the sentencing range. States v. Hernandez-Villanueva, 2007). A greater justification. 473 variance F.3d 118, requires 123 more Diosdado-Star, 630 F.3d at 366. United (4th Cir. substantial This Court will affirm if the § 3553(a) factors, on the whole, justified the sentence imposed. Id. at 366. Here, in finding that a sentence consisting of 135 months on Count One and a concurrent 120 months (the statutory maximum) on Count Eight was sufficient accomplish the § 3553(a) necessary to district court took into account but not greater sentencing Caballero than goals, Fernandez s the prior firearm offense, his membership and involvement in a violent gang, his role in the first degree murder of Mayo (which the district court found was part of the racketeering conspiracy for which Caballero Fernandez was convicted), his intimidation of a witness to that murder, and the fact that a month after the murder Caballero Fernandez was found with gang members in a car with several firearms including the murder weapon shortly after a home invasion. All directly to of these several § considerations 3553(a) by factors. the See court speak 18 U.S.C. § 3553(a)(1) ( the nature and circumstances of the offense and the history and characteristics of the defendant ); 18 U.S.C. § 3553(a)(2)(A) (the need for 6 the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment ); 18 U.S.C. § 3553(a)(2)(B) (the need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the need to protect the public from further crimes of the consideration of the defendant ). Given the district court s parties arguments and the § 3553(a) sentencing factors, and its articulation of reasons warranting an upward variance, we defer to the district court s determination as to the extent of the variance. United States v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming variance from zero-to-six-month Guidelines range to sixty-month sentence), cert. denied, 133 S. Ct. 1862 and cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 630 F.3d at 366-67 (affirming variance sentence six years greater than Guidelines range because sentence 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 relation to the package of reasons given by the court. ). in We conclude that the district court acted reasonably in imposing Caballero Fernandez s variance sentence. Accordingly, we affirm Caballero Fernandez s sentence. We dispense with oral argument 7 because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 8

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