US v. Simon Cruz-Venez


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00161-JBF-FBS-1 Copies to all parties and the district court/agency. [998478873] [10-4369]

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US v. Simon Cruz-Venez Doc. 0 Case: 10-4369 Document: 22 Date Filed: 12/06/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4369 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SIMON CRUZ-VENEZ, a/k/a Simon Cruz-Yanez, a/k/a Simon YanezCruz, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:09-cr-00161-JBF-FBS-1) Submitted: November 30, 2010 Decided: December 6, 2010 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Richard J. Colgan, Assistant Federal Public Defender, Caroline S. Platt, Research and Writing Attorney, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Katherine Lee Martin, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 10-4369 Document: 22 Date Filed: 12/06/2010 Page: 2 PER CURIAM: Simon Cruz-Venez appeals the 48-month sentence imposed following his guilty plea to illegal reentry by an aggravated felon, 8 U.S.C. 1326(a)(2) (2006). He contends that the sentence imposed was unreasonable. The court reviews We affirm. Cruz-Venez's sentence for reasonableness under a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). In reviewing a sentence, this court must first ensure that the district court committed no significant procedural error, such as incorrectly calculating the guidelines range. F.3d 377, 387 (4th Cir. 2008). United States v. Osborne, 514 "When rendering a sentence, the district court must make an individualized assessment based on the facts presented," applying the "relevant [18 U.S.C.] 3553(a) [(2006)] factors to the specific circumstances of the case before it." United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The court must also "state in open court the particular reasons supporting satisfy" arguments its this and chosen Court has a sentence" that it and "set forth the enough to has basis "considered for parties' [its] own reasoned exercising legal decisionmaking authority." omitted). Id. (internal quotation marks 2 Case: 10-4369 Document: 22 Date Filed: 12/06/2010 Page: 3 If the sentence is free from procedural error, we then review it for substantive reasonableness. Gall, 552 U.S. at 51. "Substantive reasonableness review entails taking into account the "totality of the circumstances, including the extent of any variance from the Guidelines range." United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Even if this court would have imposed a different sentence, "this fact alone is `insufficient to justify reversal of the district court.'" 51). Cruz-Venez does not dispute that his guidelines range was properly calculated. substantively He argues instead that his sentence is because his offense level was Id. at 474 (quoting Gall, 552 U.S. at unreasonable enhanced by sixteen levels and his criminal history points by five based on his prior convictions which were over ten years old. However, this court has held that use of a prior conviction to increase the offense level and criminal history is permissible for the offense of reentry by an alien after a felony conviction. United States v. Crawford, 18 F.3d 1173, 1174-76, 1179 (4th Cir. 1994) (holding it is not impermissible double counting to treat USSG prior felony as and a specific to count offense it in characteristic under 2L1.2(b) calculating criminal history under USSG 4A1.1, where prior offense accounted for six of twelve criminal history points and 3 Case: 10-4369 Document: 22 Date Filed: 12/06/2010 Page: 4 sixteen-level enhancement); see United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (affirming sixteen-level enhancement where the prior felony offense was fourteen years prior to the unlawful reentry conviction). We imposed apply the an appellate presumption that a sentence range is within properly calculated guidelines reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding appellate presumption of reasonableness for withinguidelines sentence). In rejecting Cruz-Venez's arguments for a lesser sentence, the district court thoroughly considered the 3553(a) sentencing factors and determined that they were best served by the imposition of a within-guidelines sentence. Furthermore, the court acknowledged its authority to impose a downward variance sentence, but concluded that, in light of the seriousness of Cruz-Venez's prior felony offenses, his lack of respect for the law, the seriousness of his offense conduct of driving while under the influence and without a driver's license, and his unlawful reentry into the United States after having been deported, a variance was not warranted. Under district court these did not circumstances, abuse its we conclude and that that the Cruz- discretion Venez's sentence is reasonable. Venez's sentence. Accordingly, we affirm Cruz- We dispense with oral argument because the 4 Case: 10-4369 Document: 22 Date Filed: 12/06/2010 Page: 5 facts and legal before contentions the court are and adequately argument presented not in aid the the materials would decisional process. AFFIRMED 5

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