US v. Ricardo Arellano

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cr-00060-MR-1 Copies to all parties and the district court/agency. [998619455].. [10-4475]

Appeal: 10-4475

Document: 29

Date Filed: 06/27/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4475

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICARDO JAVIER ARELLANO,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlotte.
Martin K. Reidinger,
District Judge. (3:09-cr-00060-MR-1)

Submitted:

March 23, 2011

Decided:

June 27, 2011

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Federal Defender, Ross H. Richardson,
Assistant Federal Defender, for Appellant. Edward R. Ryan,
United States Attorney, Charlotte, North Carolina; Amy Elizabeth
Ray,
Assistant
United
States
Attorney,
Asheville,
North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 06/27/2011

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PER CURIAM:
Ricardo Javier Arellano appeals the 408-month sentence
imposed following his guilty plea to three counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(d) (2006), and one
count

of

forced

accompaniment

during

violation of 18 U.S.C. § 2113(e).

a

bank

robbery,

in

Counsel for Arellano filed a

brief in this court in accordance with Anders v. California, 386
U.S.

738

(1967),

certifying

that

there

are

no

non-frivolous

issues for appeal, but questioning whether the district court
imposed an unreasonable sentence.

Arellano was informed of his

right to file a pro se supplemental brief but has not done so.
Finding no reversible error, we affirm.
We review a sentence imposed by a district court under
a

deferential

abuse

of

discretion

standard.

Gall

v.

United

States, 552 U.S. 38, 45 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010).

We begin by reviewing the sentence

for

error,

significant

procedural

including

such

errors

as

“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence
based

on

clearly

erroneous

facts,

or

failing

to

adequately

explain the chosen sentence including an explanation for any
deviation from the Guidelines.” Gall, 552 U.S. at 51.

2

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If there are no procedural errors, we consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances.
F.3d 468, 473 (4th Cir. 2007).

United States v. Pauley, 511

While we presume that a sentence

within a properly calculated Guidelines range is reasonable, see
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007), we
may not presume that a sentence outside the Guidelines range is
unreasonable.

See United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008).

Rather, in reviewing a sentence outside the

Guidelines range, we “consider the extent of the deviation, but
must give due deference to the district court’s decision that
the § 3553(a) factors, on the whole, justify the extent of the
variance.”

United

States

v.

Morace,

594

F.3d

Cir.), cert. denied, 131 S. Ct. 307 (2010).

340,

346

(4th

That we would have

imposed a different sentence is not reason alone to vacate the
district court’s sentence. Id.
We

hold

that

the

district

court

committed

procedural nor substantive error during sentencing.

neither

The court

used the correct advisory Guidelines range and explained its
reasoning, considering both parties’ arguments and the § 3553(a)
factors.
Arellano’s

Further, the court explicitly found that the facts of
crimes

made

his

case

exceptional,

warranting

an

above-Guidelines sentence in light of the § 3553(a) factors.

In

doing so, it did not abuse its discretion.
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In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We
court

requires that counsel inform Arellano, in writing, of the right
to petition the Supreme Court of the United States for further
review.

If Arellano requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Arellano.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

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