US v. Ramiro Alvarez-Rubio

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00370-TDS-1. Copies to all parties and the district court/agency. [998373633] [09-4523]

US v. Ramiro Alvarez-Rubio

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Date Filed: 07/06/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4523 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RAMIRO ALVAREZ-RUBIO, a/k/a Juan Alvarez Castro, Roberto Lainez, a/k/a Leonardo Fabio Alvarez-Santos, Defendant ­ Appellant. a/k/a

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08-cr-00370-TDS-1) Submitted: June 16, 2010 Decided: July 6, 2010

Before MOTZ, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Todd A. Smith, LAW OFFICE OF TODD A. SMITH, Graham, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Ramiro four months in Alvarez-Rubio prison and appeals his of sentence to sixtyrelease

three

years

supervised

imposed after he pled guilty to illegal reentry of a deported alien after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). Alvarez-Rubio's

attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no

meritorious grounds for appeal but raising the issue of whether the district court erred in imposing a sentence of sixty-four months of imprisonment as punishment in this case. Alvarez-

Rubio was notified of his right to file a pro se supplemental brief but has not done so. We affirm. Gall v.

We review a sentence for abuse of discretion. United States, 552 U.S. 38, 51 (2007).

The first step in this

review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating the guideline range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). then consider the substantive reasonableness of the We

sentence

imposed, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. On appeal, we presume that a sentence

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within

a

properly

calculated

guideline

range

is

reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We have reviewed the record and conclude that the

district court did not err or abuse its discretion in sentencing Alvarez-Rubio, and his sentence at the middle of his advisory guideline range is procedurally and substantively reasonable.

The district court properly determined his guideline range was fifty-seven to seventy-one months in prison based on a total offense level of twenty-one and criminal history category of IV. At sentencing, Alvarez-Rubio noted he came from a poor country to the United States to succeed and help his family, and he requested a sentence at the lower end of the guideline range. The district court confirmed Alvarez-Rubio had been

deported twice and had illegally returned both times, and he had not served long sentences for his two prior aggravated felony convictions. In sentencing him to the middle of his guideline

range, the court noted it had taken into account the financial condition and personal situation that brought him to this

country, but the court also considered the need for the sentence to deter further criminal conduct and promote respect for the law. Since Alvarez-Rubio illegally returned to the United

States within five months of being deported a second time, it was apparent that his prior prison sentences were insufficient

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for purposes of deterrence.

Thus, the court properly concluded

a sixty-four month sentence was reasonable in this case. 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 his 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

a copy thereof was served on the client. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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