US v. Sivianny Arce-Campos, No. 13-4759 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4759 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SIVIANNY JULIAN ARCE-CAMPOS, a/k/a Sivianny Arce, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior District Judge. (6:13-cr-00112-GRA-1) Submitted: March 28, 2014 Decided: May 7, 2014 Before KING, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. William N. Nettles, United States Attorney, Max B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sivianny Arce-Campos appeals his conviction and thirty-four-month sentence imposed following his guilty plea to false use of a social security number (Count One), in violation of 42 U.S.C. § 408(a)(7)(B) (2006), and aggravated identity theft (Count Three), in violation of 18 U.S.C. § 1028A(a)(1) (2012). On appeal, Arce-Campos counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for review but questioning whether the district court committed procedural sentencing error by failing to provide an adequate explanation for the sentence imposed. Arce-Campos was notified of his right to file a pro se supplemental brief but has not done so. For the reasons that follow, we affirm. We review a sentence for reasonableness, applying a deferential abuse-of-discretion standard. States, 552 U.S. 38, 41 (2007). district including court improper insufficient factors, committed and no inadequate of v. United We must first ensure that the significant calculation consideration Gall the of 18 the explanation procedural error, Guidelines range, U.S.C. of the § 3553(a) sentence (2012) imposed. Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In assessing Guidelines calculations, we review factual findings for clear error, legal conclusions de 2 novo, and States v. unpreserved Strieper, arguments 666 F.3d for 288, plain 292 (4th error. Cir. United 2012). To establish plain error, Arce-Campos must demonstrate that (1) the district court erred, (2) the error was plain, and (3) the error affected his substantial rights. 133 S. Ct. 1121, 1126 (2013). Henderson v. United States, Even if these requirements are met, we will correct the error only if it seriously affects the fairness, integrity proceedings. or public reputation of judicial United States v. Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation marks omitted). The adjustment offense Guidelines to the involving provide base offense ten or more for level a two-level applicable victims. to upward a fraud U.S. Sentencing Guidelines Manual ( USSG ) § 2B1.1(b)(2)(A) (2012). We sought supplemental briefing to address whether the presentence report ( PSR ) failed to provide adequate facts to support a finding that Arce-Campos offense involved ten or more victims and, if so, whether the district court plainly enhancement under USSG § 2B1.1(b)(2)(A). supplemental briefs, we conclude enhancement is not reversible. any erred in imposing an After reviewing these error in imposing this Arce-Campos concedes as much, and suggests a strategic reason for declining to challenge the enhancement. Given this concession, and absent further evidence in the record to undermine the enhancement s factual basis, we 3 are unable to conclude that the district court plainly erred in imposing the enhancement. See Henderson, 133 S. Ct. at 1126; Nicholson, 676 F.3d at 381. Arce-Campos adequately explained explaining a questions the sentence, basis the whether for the its district district chosen court court sentence. must In conduct an individualized assessment justifying the sentence imposed and rejection of arguments for a higher or lower sentence based on § 3553. Lynn, 592 F.3d at omitted). The court is 584 not (internal required to quotation marks robotically tick through § 3553(a) s every subsection, particularly when imposing a within-Guidelines sentence. F.3d 388, omitted). it 395 (4th Cir. United States v. Powell, 650 2011) (internal quotation marks Rather, it need only provide some indication that considered the § 3553(a) factors as they apply to the defendant and any nonfrivolous arguments raised by the parties. United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). We find no error in the district court s explanation. The court specifically indicated its consideration of the § 3553(a) factors on the record, justifying its sentence based on the need for deterrence, just punishment, and protection of the public. Although the court did not expressly address Arce-Campos arguments for a downward variance on Count One, the 4 record demonstrates that the court considered his arguments, as it denied his request for voluntary surrender. court s explanation was sufficiently We conclude the detailed to provide an individualized assessment and to justify the sentence imposed. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Arce-Campos conviction and sentence. This court requires that counsel inform Arce-Campos, in writing, of the right to petition the Supreme Court of the United States for further filed, review. but If counsel Arce-Campos believes requests that such that a a petition petition would be be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Arce-Campos. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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