US v. Jose Gonzalez-Villatoro

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00087-JCC-1 Copies to all parties and the district court/agency. [998547164] [10-4761]

US v. Jose Gonzalez-Villatoro

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Case: 10-4761

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Date Filed: 03/17/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4761

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JOSE SANTOS GONZALEZ-VILLATORO, a/k/a Jose Santos Gonzalez, a/k/a Jose Lorenzo Gonzales, a/k/a Jose Gonzales, a/k/a Jose DeLapaz Gonzales, a/k/a Jose Santo Gonzales-Villatoro, a/k/a Jose Santos Gonzales, a/k/a XX Jose, a/k/a Jose Morenzo Gonzales, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:10-cr-00087-JCC-1)

Submitted:

February 14, 2011

Decided:

March 17, 2011

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Francis H. Pratt, Joshua M. Paulson, Assistant Federal Public Defenders, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Kondi J. Kleinman, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Jose Santos Gonzalez-Villatoro appeals the twenty-

four-month sentence imposed following his guilty plea to illegal reentry after an aggravated felony. the sentence imposed by the On appeal, he contends that court was rendered

district

procedurally unreasonable by the court's failure to adequately explain its chosen sentence. proceedings. Gonzalez-Villatoro's presentence investigation report We vacate and remand for further

("PSR") determined that the Guidelines range was twenty-four to thirty months. At his sentencing hearing, neither party

objected, and the court adopted the PSR's findings.

The court

then heard argument from the parties regarding the appropriate sentence. Guidelines Counsel for Gonzalez-Villatoro argued for a belowsentence based upon (1) the unreasonable double-

counting effect of a prior conviction being used to increase Gonzalez-Villatoro's criminal history points as well as his

offense level; (2) his positive employment history; and (3) his pending deportation. The court stated that it believed the Guidelines

calculation to be accurate and understood the advisory nature of the Guidelines as well as its from authority to depart or vary court

downward.

After

hearing

Gonzalez-Villatoro,

the

sentenced him to twenty-four months, noting that "[t]he reason 2

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for

the

Court's the

sentence

is

it of

reflects the

the

nature reflects

and the

circumstance,

seriousness

offense,

history and characteristics of the defendant, promotes respect for the law, to provides criminal just conduct, punishment, avoids affords adequate sentence

deterrence

unwarranted

disparities." When, as here, a defendant properly preserves a claim of sentencing error in the a district deferential court, abuse we of review the

sentence standard.

imposed

under

discretion

Gall v. United States, 552 U.S. 38, 45 (2007); United We must

States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010). begin error, by reviewing the sentence errors the as for significant to

procedural (or the

including

such

"failing

calculate treating

improperly

calculating)

Guidelines

range,

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. If there are no procedural

errors, we then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). presume reasonable a sentence imposed within the We

properly

3

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calculated Guidelines range.

United States v. Mendoza-Mendoza,

597 F.3d 212, 217 (4th Cir. 2010). "When rendering a sentence, the district court `must make an individualized assessment based on the facts

presented.'" Cir. 2009)

United States v. Carter, 564 F.3d 325, 328 (4th (quoting Gall, 552 U.S. at 50). Accordingly, a

sentencing court must apply the relevant § 3553(a) factors to the particular facts presented and must "state in open court" the particular reasons that support its chosen sentence, showing that it has a reasoned basis for its decision and has considered the parties' arguments. Id. tick A sentencing court need not,

however,

"robotically

through"

otherwise

irrelevant

subsections of § 3553(a).

See United States v. Johnson, 445 When, as here, the district

F.3d 339, 345 (4th Cir. 2006).

court imposes a within-Guidelines sentence, the district court may "provide a less extensive, while still individualized,

explanation." Cir. 2009),

United States v. Johnson, 587 F.3d 625, 639 (4th cert. denied, must 130 be S. Ct. 2128 (2010). to allow That for

explanation,

however,

sufficient

"meaningful appellate review" such that we need "not guess at the district court's rationale." (internal quotation marks omitted). We conclude that the district court abused its Carter, 564 F.3d at 329-30

discretion in sentencing Gonzalez-Villatoro. 4

While counsel for

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Gonzalez-Villatoro made specific references to § 3553(a) factors in support of his request for a below-Guidelines, the district court neither addressed these arguments nor explained its

reasons for the chosen sentence. § 3553(a) factors, the district

Although it listed several court did not articulate an

individualized assessment of the factors and could have made the same recitation during any sentencing hearing. F.3d at 329 (finding error where "[t]he See Carter, 564 district court's

asserted `reasons' could apply to any sentence, regardless of the offense, the defendant's personal background, or the

defendant's criminal history"). We will reverse this type of preserved error unless we find that the error was harmless. Lynn, 592 F.3d at 576. "To

avoid reversal for non-constitution, non-structural errors like [the one presented here], the party defending the ruling below (here, the Government) bears the burden of demonstrating that the error was harmless, i.e. that it did not have a substantial and injurious effect on the result." Id. at 585 (internal

quotation marks omitted). brief that the error that was

The Government does not argue in its harmless, and the record of does not

conclusively Villatoro's] imposed."

show

"explicit would not

consideration have affected

[Gonzalezsentence

arguments

the

Id.

5

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Accordingly,

we

vacate

Gonzalez-Villatoro's

sentence

and remand for the district court to properly address GonzalezVillatoro's arguments for a lower sentence and provide

individualized reasoning for the sentence imposed. *

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.

VACATED AND REMANDED

Of course, by this disposition, we indicate no opinion as to whether the twenty-four month sentence was substantively reasonable.

*

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