US v. Victor Abusada

Filing 920091009

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5195 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR DOMINGO AMASHTA ABUSADA, a/k/a Joe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 AGEE, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 2 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 5

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