US v. Julio Dibbi


UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Julio Dibbi Doc. 0 Case: 10-4829 Document: 28 Date Filed: 02/24/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4829 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JULIO SPIRO DIBBI, Defendant Appellant.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 DAVIS, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Case: 10-4829 Document: 28 Date Filed: 02/24/2011 Page: 2 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 Case: 10-4829 Document: 28 Date Filed: 02/24/2011 Page: 3 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 Case: 10-4829 Document: 28 Date Filed: 02/24/2011 Page: 4 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 Case: 10-4829 Document: 28 Date Filed: 02/24/2011 Page: 5 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

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