US v. Joaquin Delangel-Velasco

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cr-00222-TDS-1 Copies to all parties and the district court/agency. [998809878].. [11-4256]

Appeal: 11-4256

Document: 38

Date Filed: 03/14/2012

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4256

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOAQUIN DELANGEL-VELASCO, a/k/a
Quaquoin Delangel-Velasco,

Roberto

G.

Flores,

a/k/a

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00222-TDS-1)

Submitted:

January 18, 2012

Decided:

March 14, 2012

Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and J.
Michelle CHILDS, United States District Judge for the District
of South Carolina, sitting by designation.

Affirmed by unpublished opinion.
Judge Childs wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.

Louis C. Allen III, Federal Public Defender, Greensboro, North
Carolina, Mireille P. Clough, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

2

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CHILDS, District Judge:
Joaquin DeLangel-Velasco challenges the twenty-four month
sentence imposed by the district court following his guilty plea
to

the

charge

of

illegally

reentering

the

violation of 8 U.S.C. §§ 1326(a) and (b)(1).

United

States

in

We affirm.

DeLangel-Velasco is a citizen of Mexico.

In 2003, he was

convicted in North Carolina on two counts of felony breaking and
entering

motor

vehicles.

In

2005,

DeLangel-Velasco

was

convicted in North Carolina for felony abduction of children.
He was deported to Mexico on December 10, 2008.
2010,

DeLangel-Velasco

was

arrested

in

On February 4,

Thomasville,

North

Carolina and law enforcement authorities determined that he had
re-entered

the

United

States

without

obtaining

appropriate

consent.
DeLangel-Velasco pled guilty in the United States District
Court for the Middle District of North Carolina to an indictment
under 8 U.S.C. §§ 1326(a) and (b)(1) for unlawfully returning to
the

United

States

after

being

deported.

The

district

court

sentenced DeLangel-Velasco to twenty-four months’ imprisonment,
a

three-year

term

of

supervised

release,

and

a

special

assessment of one hundred dollars.
At

sentencing,

the

district

court

found

that

DeLangel-

Velasco’s prior conviction for abduction of children qualified
as

an

aggravated

felony

which
3

justified

an

eight-level

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enhancement to his base offense level.

Under this analysis, the

Guidelines range was twenty-four to thirty months.

The district

court further found that, even if the eight-level enhancement
did

not

apply,

DeLangel-Velasco

was

subject

to

a

four-level

enhancement because he was convicted of a prior felony.

Under

this alternative analysis, the Guidelines range was fifteen to
twenty-one months.
sentence

was

In determining that the twenty-four month

appropriate,

the

district

court

noted

the

seriousness of the offense, the need to promote respect for the
law, and the need for adequate deterrence.
On appeal DeLangel-Velasco argues that the district court
erred in imposing an eight-level enhancement to his base offense
level based on the determination that his prior conviction for
abduction of children qualified as an aggravated felony under
the

United

States

Sentencing

Guidelines.

DeLangel-Velasco

further argues that the district court’s alternative basis for
imposing the twenty-four month sentence was unreasonably high
because the sentence represented an upward variance which was
greater than necessary to accomplish the goals of 18 U.S.C. §
3553(a).
We

review

a

sentence

imposed

by

a

district

reasonableness under an abuse-of-discretion standard.
v. United States, 552 U.S. 38, 46, 51 (2007).

court

for

See Gall

Initially, the

court determines whether there is any “significant procedural
4

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error”

in

the

Date Filed: 03/14/2012

sentence,

improperly

calculating)

Guidelines

as

including
the

mandatory,

Page: 5 of 6

“failing

failing

to

calculate

(or

range,

Guidelines

to

treating

the

consider

the

§

3553(a)

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 range.”
Id.; see also United States v. Carter, 564 F.3d 325, 328 (4th
Cir.

2009).

The

court

of

the

reasonableness
totality

of

variance

from

imposed

by

range,

the

variance.

the

then

sentence

circumstances,

the

the

must

Guidelines

district

court

must

“consider

imposed,”
including

range.”

court

provide

substantive

considering
the

Id.

varies

the

extent

If

beyond

justification

the

the
to

of

“the
any

sentence

Guidelines

support

the

See United States v. Evans, 526 F.3d 155, 161 (4th

Cir. 2008), cert. denied, 555 U.S. 977 (2008).
In

this

case,

DeLangel-Velasco

does

not

dispute

the

district court’s application of the four-level enhancement, but
argues that the district court imposed a three-month variance
which was unreasonable.

The court notes that the three-month

variance is not significantly higher than the higher limits of
the

sentencing

range.

In

applying

an

upward

variance,

the

district court noted DeLangel-Velasco’s disregard for a prior
order of deportation, his substantial criminal history while in
the

United

States,

and

the

consequential
5

need

to

provide

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Date Filed: 03/14/2012

Page: 6 of 6

adequate deterrence and respect for the law.

Based on a review

of the record, we find no abuse of discretion in the upward
variance sentence imposed by the district court and find that
the

sentence

was

reasonable

under

the

circumstances.

We

therefore affirm DeLangel-Velasco’s sentence.
Because

we

procedurally

and

find

substantively

court’s

analysis

felony

conviction,

classification

DeLangel-Velasco’s

of

the

we

of

reasonable

four-level

need

not

abduction of children.

to

be

under

the

district

enhancement

for

a

address

DeLangel-Velasco’s

sentence

the
prior

district

prior

court’s

conviction

for

We dispense with oral argument because

the facts and legal contentions were adequately presented in the
materials

before

the

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

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