US v. Julio Dibbi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00233-NCT-1 Copies to all parties and the district court/agency. [998531194] [10-4829]

US v. Julio Dibbi

Doc. 0

Case: 10-4829

Document: 28

Date Filed: 02/24/2011

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4829

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. JULIO SPIRO DIBBI, 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. (1:09-cr-00233-NCT-1)

Submitted:

January 31, 2011

Decided:

February 24, 2011

Before AGEE and Circuit Judge.

DAVIS,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

William E. West, Jr., Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Frank J. Chut, Jr., 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Unpublished opinions are not binding precedent in this circuit.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: Julio Spiro Dibbi pled guilty to aiding and abetting the filing of false tax returns, 26 U.S.C. § 7206(2) (2006) (Count One), and interfering with Internal Revenue Service (IRS) laws, 26 U.S.C. § 7212(a) (2006) (Count Two), and was sentenced at the bottom of his advisory guideline range to a term of thirty months imprisonment. Dibbi appeals his sentence,

contending that the district court erred by denying his request for either a departure or variance sentence below the guideline range based on his poor health and advanced age. A district court's refusal to We affirm. below the

depart

applicable guidelines range does not provide a basis for appeal under 18 U.S.C. § 3742(a) (2006), "unless the court failed to understand its authority to do so." United States v. Brewer,

520 F.3d 367, 371 (4th Cir. 2008); see United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) (declining to disturb the district (2005), depart court's sentence below the post-United where the States court but v. Booker, 543 U.S. 220 to

understood declined to

its

ability

guidelines

exercise

such

authority). Dibbi believed argument it contends the on appeal that to the the district court his that

lacked

authority

depart. court's

However, finding

simply

mischaracterizes

Dibbi's health and age did not warrant a departure. 2

The record

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reveals no confusion on the court's part about its authority to depart if circumstances warranted. With respect to the court's decision not to vary

downward, we review a sentence, "whether inside, just outside, or significantly outside the Guidelines standard." range," Gall under v. a

"deferential

abuse-of-discretion

United

States, 552 U.S. 38, 41 (2007).

In conducting this review, we

first ensure "that the district court committed no significant procedural error, such 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." 51. Id. at

"When rendering a sentence, the district court must make an assessment "relevant § based on the factors facts to presented," the specific

individualized applying the

3553(a)

circumstances of the case before it."

United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). particular reasons The court must also "state in open court the supporting its chosen sentence" and "set

forth enough to satisfy" us that it has "considered the parties' arguments and has a reasoned basis for exercising [its] own

legal decisionmaking authority." omitted). 3

Id. (internal quotation marks

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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 we would have imposed a different sentence, "this

fact alone is `insufficient to justify reversal of the district court.'" Id. at 474 (quoting Gall, 552 U.S. at 51). Dibbi does not claim that the district court erred in calculating his guideline range. This court presumes that a

sentence imposed within the properly calculated guidelines range is 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 overcome guidelines sentence). the We conclude of that Dibbi has failed to

presumption In

reasonableness

for

his

withinfor a

sentence.

rejecting

counsel's

request

downward variance, the court considered the § 3553(a) sentencing factors and determined of a that they were best served The by the

imposition

within-guidelines

sentence.

court

emphasized that a variance was not warranted based on Dibbi's health and age, particularly in light of the seriousness of the offense and the fact that Dibbi continued his criminal conduct 4

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over

a

period

of

years

and

tried

to

cover

his

crimes

by

convincing others to lie to the IRS. Dibbi also claims that the district court failed to exercise its discretion to vary below the guideline range

because it improperly considered his status as a naturalized citizen. While national origin, along with race, sex, religion

and socio-economic status are not relevant to sentencing, see U.S. Sentencing Guidelines Manual § 5H.10 (2009), the district court did not focus on any of these factors. comment on Dibbi's immigrant background and The court did his seeming

ingratitude in breaking the laws of a country that had "treated [him] well." The court made the comments while considering

whether Dibbi's conduct warranted a sentence above the guideline range, rather than as a reason for refusing to vary below the range. We conclude that the court's comments did not render the

sentence unreasonable. We district facts therefore We affirm the with are and sentence oral imposed by the the the the

court. legal before

dispense

argument

because in aid

and

contentions the court

adequately argument

presented not

materials

would

decisional process. AFFIRMED

5