US v. Victor Abusada

Filing 920091009

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5195

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR DOMINGO AMASHTA ABUSADA, a/k/a Joe Leonard Melvin, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:08-cr-00112-RJC-1)

Submitted:

September 28, 2009

Decided:

October 9, 2009

Before MOTZ and Circuit Judge.

AGEE,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

William R. Terpening, ANDERSON TERPENING, PLLC, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Victor Domingo Amashta Abusada pled guilty pursuant to a plea agreement to falsely representing himself to be a United States (2006), deported citizen and as (Count 2), the in violation of 18 U.S.C. having § 911 been of

reentering an

United felon

States

after in

aggravated

(Count

4),

violation

8 U.S.C. § 1326(a), (b)(2) (2006).

The district court sentenced

Abusada to thirty-six months on Count 2, the statutory maximum sentence, imprisonment and on a concurrent 4, a thirty-seven-month at the term of of the

Count

sentence

bottom

advisory guidelines range for that count.

On appeal, Abusada's

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), issues stating for that, in but his view, there are no the

meritorious

appeal

questioning

whether

district court erred by enhancing Abusada's offense level by sixteen levels and whether the sentence is reasonable. Abusada

was informed of his right to file a pro se supplemental brief but has not done so. Abusada's erred in applying Guidelines Finding no reversible error, we affirm. counsel a contends that the district under court U.S. where

sixteen-level Manual §

enhancement

Sentencing

2L1.2(b)(1)(A)

(2007),

Abusada initially received authorization to reenter the United States after his deportation. Abusada concedes, however, that

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such authorization had expired by the time he was arrested and charged with illegal reentry of a removed alien in 2008. Counsel illegally, he also suggests have that, if a Abusada two-year reentered sentence

should

received

only

based upon a 1990 letter from the United States Department of Justice. Section 1326 provides a two-year maximum sentence for

any alien who illegally enters the United States after having been deported. subsequent to 8 U.S.C. § 1326(a). a conviction for If the alien's removal was an aggravated felony, the

statutory maximum increases to twenty years.

Id. § 1326(b)(2).

Even if Abusada initially was permitted to reenter the United States, he conceded that his reentry in 2008 after his

deportation as an aggravated felon was not authorized, thereby subjecting him to the twenty-year statutory maximum sentence. In addition, although Abusada contends that his sentence should be capped at two years, we have rejected a similar claim. See

United States v. Aquino-Chacon, 109 F.3d 936, 939 n.2 (4th Cir. 1997) (collecting claims cases rejecting due process and equitable by

estoppel

based

upon

erroneous

information

provided

government). Abusada sentence. We also a challenges sentence the for reasonableness reasonableness of under his an

review

abuse of discretion standard. 38, __, 128 S. Ct. 586, 597

Gall v. United States, 552 U.S. (2007). 3 This review requires

appellate consideration of both the procedural and substantive reasonableness of a sentence. sentence assess is procedurally the Id. In determining whether a this court must first the This

reasonable, court

whether

district guidelines

properly Id. at

calculated 596-97.

defendant's

advisory

range.

court then must consider whether the district court considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed the

arguments presented by the parties, and made "an individualized assessment based on the facts presented." Gall, 128 S. Ct. at

597; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, sentence. 2007). Our review of the record leads us to conclude that the district court properly calculated Abusada's guidelines range. The court also properly considered the advisory guidelines range and the § 3553(a) factors and related those factors to the we review the substantive reasonableness of the

United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

circumstances of Abusada's case. error in Abusada's sentence. Turning to the

Thus, we find no procedural

substantive

reasonableness

of

the

sentence, Abusada contends that his thirty-seven-month sentence is excessive. However, we presume that a sentence imposed

within the properly calculated guidelines range is reasonable. Rita v. United States, 551 U.S. 4 338, 347 (2007); United

States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009).

Applying

the presumption of reasonableness to Abusada's within-guidelines sentence, we find that the district court did not abuse its discretion in sentencing Abusada. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment.

This court requires that counsel inform his client, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but counsel If the client requests that a petition be believes that such a petition would be

frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral

a copy thereof was served on the client.

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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