US v. Juan Antonio Ponce-Gonzalez, No. 13-4918 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4918 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN ANTONIO PONCE-GONZALEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:13-cr-00070-BO-1) Submitted: June 16, 2014 Before GREGORY Circuit Judge. and WYNN, Decided: Circuit Judges, and June 20, 2014 DAVIS, Senior Affirmed by unpublished per curiam opinion. Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Juan Antonio Ponce-Gonzalez appeals his conviction and sentence after pleading guilty to illegal reentry after being deported subsequent to a felony conviction in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). He was sentenced to 21 months in prison and no supervised release. The district court ordered that his prison sentence would run consecutively to his 14-month sentence imposed by the court in another case. On appeal, he contends that his counsel was ineffective for not appealing the other judgment, and his sentence is unreasonable. We affirm. To the extent that Ponce-Gonzalez challenges the other judgment or counsel s actions in the other case, this Court lacks jurisdiction to consider his claims because he did not appeal the judgment. § 1291 (2012). actions in See 18 U.S.C. § 3742(a) (2012); 28 U.S.C. To the extent that he challenges his counsel s this case, we conclude that the claim is not cognizable on direct appeal because it does not conclusively appear on the record that counsel was deficient or prejudicial. See United States v. Powell, 680 F.3d 350, 359 (2012). We review a criminal sentence for reasonableness using an abuse of discretion standard. United States v. McManus, 734 F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). court committed a We first consider whether the district significant 2 procedural error, such as improperly calculating the Guidelines explaining the sentence imposed. range or inadequately United States v. Allmendinger, 706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747 (2013). If the sentence is procedurally reasonable, we then consider whether it is substantively reasonable, account the totality of the circumstances. 51. taking into Gall, 552 U.S. at We presume that a sentence within or below a properly calculated Guidelines range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). In sentencing, the district court must first correctly calculate the defendant s Guidelines range. F.3d at 340. Allmendinger, 706 The court is next required to give the parties an opportunity to argue for what they believe is an appropriate sentence, and the court must consider those arguments in light of the factors set forth in 18 U.S.C. § 3553(a) (2012). Id. When rendering a sentence, the court must make and place on the record an individualized facts of the case. assessment based on the particular United States v. Carter, 564 F.3d 325, 328, 330 (4th Cir. 2009). While a court must consider the statutory factors its and reference explain § 3553(a) or sentence, discuss it every need factor not on explicitly the record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The court should set forth enough to satisfy the appellate court that [it] has considered the parties arguments and has a 3 reasoned basis authority. for exercising [its] own legal decisionmaking Rita v. United States, 551 U.S. 338, 356 (2007). We have reviewed sentence is reasonable. the record and conclude that the On appeal, Ponce-Gonzalez contends it is unreasonable because the district court sentenced him at the high end rather than the low end of his Guidelines range when there were not any aggravating factors and he had been cooperating with the government, and it failed to adequately explain the decision. However, the court explained the most aggravating fact in his case was that he was recently convicted and sentenced to 364 days in prison for illegal reentry and was deported again, but he came right back and the sentence did not deter him from doing so. attempted to them, acknowledged he provide Moreover, while he argued that he had information his to the cooperation Government had not to risen help to the level of substantial assistance; and he did receive a reduction in his Guidelines range for acceptance of responsibility. conclude that the court reasonably determined and We adequately explained that a sentence at the high end of the Guidelines range was appropriate based on his repeated violation of the law and the fact that the prior sentence was inadequate to deter it. 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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