US v. Hermes Mendoza-Ramirez

Filing 920090429

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4543 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HERMES JEOVANY MENDOZA-RAMIREZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00058-RLV-CH-1) Submitted: April 23, 2009 Decided: April 29, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Aaron E. Michel, Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hermes possession with Jeovany intent to Mendoza-Ramirez distribute at pled least guilty 500 grams to of cocaine, 21 U.S.C. 841(a)(1), (b)(1)(B) (2006) (count one), and unlawful reentry after deportation, 8 U.S.C. 1326(a), (b)(2) (2006) (count two). The Government filed a 21 U.S.C. Based to a 851 (2006) notice alleging a prior felony drug offense. on the prior conviction, Mendoza-Ramirez was sentenced statutory minimum of 120 months' imprisonment on count one and the guidelines minimum On of 63 months on count two, to run his concurrently. appeal, Mendoza-Ramirez asserts that sentence, based on the Government's exercise of discretion to file a 851 information, is unreasonable as it violates the Sentencing Reform Act of 1984, the Due Process Clause of the Fifth Amendment, and the Cruel and Unusual Punishment Clause of the Eighth Amendment. The court Finding no reversible error, we affirm. reviews Mendoza-Ramirez's sentence for reasonableness under a deferential abuse-of-discretion standard. See Gall v. United States, 128 S. Ct. 586, 591 (2007). reviewing a sentence, this court must first ensure that In the district court committed no significant procedural error, such as incorrectly calculating the guideline range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). The 2 court then considers the substantive reasonableness of the sentence imposed under the totality of the circumstances. Mendoza-Ramirez was Gall, 128 S. Ct. at 597. sentenced to the statutory mandatory minimum sentence of 120 months' imprisonment and we find the sentence reasonable. to 851 To the extent on the he posits constitutional challenges based prosecutor's discretion to file an information, we find the claim without merit. A prosecutor's discretion to "determine whether a particular defendant will be subject to the enhanced statutory maximum" is "similar to the discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect." 62 (1997). "Such United States v. LaBonte, 520 U.S. 751, 761discretion is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors." Id. at 762; see also United States v. Allen, 160 F.3d 1096, 1108 (6th Cir. 1998) (finding no impermissible delegation of authority by Congress in affording discretion to prosecutors to choose between statutes carrying different penalties for identical conduct); United States v. Cespedes, 151 F.3d 1329, 1334-35 (11th Cir. 1998) (holding 851 does not improperly delegate legislative power to executive). Accordingly, we affirm the judgment. oral argument because the facts and legal We dispense with contentions are 3 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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