US v. Mariano Nunez-Ortiz

Filing 920100204

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4683

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIANO NUNEZ-ORTIZ, a/k/a Mario Ortiz, a/k/a Ramon OrtizPalomarez, a/k/a Mario Ortiz-Flores, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00178-NCT-1)

Submitted:

January 13, 2010

Decided:

February 4, 2010

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Mariano Nunez-Ortiz (Nunez), a Mexican national,

appeals his eighteen month sentence for reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a) (2006). v. Appellate counsel has filed a brief pursuant to Anders 386 U.S. 738 (1967), questioning whether the

California,

district court erred in sentencing Nunez outside of the advisory guideline range, but concluding that there are no meritorious grounds for appeal. * brief and the Nunez has not filed a pro se supplemental elected not to file a brief. We

Government

affirm. "Regardless of whether the sentence imposed is inside or outside the the [g]uidelines under range, an the appellate court must

review

sentence

abuse-of-discretion

standard."

Gall v. United States, 552 U.S. 38, 51 (2007). are charged with reviewing sentences for

Appellate courts reasonableness,

considering both the procedural and substantive reasonableness of a sentence. Id.

While Nunez has been released from prison, this appeal is not moot as he has a legally cognizable interest in the outcome. Though he has been released from prison and likely deported, he has not completed his term of supervised release. United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).

*

2

In assess

determining the

procedural court

reasonableness, properly

we

first the

whether

district

calculated

defendant's advisory guidelines range.

Id. at 51.

We then

determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, treated the guidelines as mandatory, selected a sentence based on "clearly erroneous facts," or failed to

sufficiently explain the selected sentence.

Id.; United States "The district . .

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). court `must the make an individualized § 3553(a)

assessment[,]'. to the

apply[ing]

relevant

factors

specific

circumstances of the case before it." 564 F.3d 325, 328 (4th Cir. 2009)

United States v. Carter, (quoting Gall v. United

States, 552 U.S. 38, 50 (2007)). must detail in open court forth the

Additionally, a district judge reasons to behind its chosen

sentence,

"`set[ting]

enough

satisfy

the

appellate

court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.'" 356 (2007)).

Id. (quoting Rita v. United States, 551 U.S. 338,

Finally, we review the substantive reasonableness of the sentence, "taking into account the `totality of the

circumstances, including the extent of any variance from the

3

[g]uidelines range.'" 552 U.S. at 51).

Pauley, 511 F.3d at 473 (quoting Gall,

Here, it is clear that the district court's sentence was procedurally otherwise. reasonable, The and Nunez's court attorney properly does not

contend

district

calculated

Nunez's guidelines range at six to twelve months' imprisonment and provided an individualized assessment, explicitly stating

the reasons for varying six months upward beyond the high end of the guideline range. Accordingly, we find that Nunez's sentence

was procedurally reasonable. Similarly, reasonable. Nunez's sentence was substantively

Though the sentence was six months outside of the

upper end of the guideline range, the district judge articulated that such an upward departure history, was which justified he due to was Nunez's largely

substantial

criminal

believed

under represented in the criminal history report.

Specifically,

the judge identified the fact that this was the fourth time Nunez had illegally entered the United States, and that he had been deported on multiple prior occasions. Moreover, the judge

noted that Nunez's criminal offenses appeared to escalate each time he returned and prior sentences had not deterred his

illegal behavior.

Therefore, we find that the district court

did not abuse its discretion in sentencing Nunez to eighteen months' imprisonment. 4

In accordance with Anders, we have reviewed the entire record for any meritorious issues and have found none.

Therefore, we affirm the district court's judgment.

Though we

generally require that counsel inform his client, in writing, of the client's right to petition the Supreme Court of the United States for further review, counsel has informed us that, due to Nunez's deportation, he is unable to contact or otherwise serve his client. Accordingly, we refrain from imposing this

requirement.

We dispense with oral 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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