US v. Luis Cruz
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00006-JPJ-PMS-1 Copies to all parties and the district court/agency. [998912492].. [11-5136]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:11-cr-00006-JPJ-PMS-1)
Submitted:
July 26, 2012
Decided:
August 9, 2012
Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Debbie H. Stevens, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to a written plea agreement, Luis Cruz pled
guilty to possessing prohibited objects (weapons) while in a
federal
prison,
in
(d)(1)(B) (2006).
Government,
Guidelines
violation
of
18
U.S.C.
§ 1791(a)(2),
The district court, without a motion by the
elected
range
to
of
imprisonment
and
imprisonment,
to
vary
twenty-seven
impose
be
federal sentence.
upward
a
served
from
to
Cruz’s
advisory
thirty-three
forty-eight-month
consecutive
to
months’
term
Cruz’s
of
original
The district court also imposed a three-year
term of supervised release.
Counsel for Cruz filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
nonfrivolous appellate issues, but asking that we review the
reasonableness
of
Cruz’s
sentence.
Cruz
filed
a
pro
se
supplemental brief in which he too challenges the reasonableness
of
the
variant
invalid.
For
sentence
the
and
reasons
asserts
that
that
follow,
his
conviction
we
reject
is
these
contentions and affirm the district court’s judgment.
Turning
first
review is familiar:
applying
an
abuse
to
Cruz’s
sentence,
our
standard
of
we review a sentence for reasonableness,
of
discretion
States, 552 U.S. 38, 51 (2007).
standard.
Gall v.
United
When a district court imposes a
sentence that falls outside of the applicable Guidelines range,
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“we consider whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect
to
range.”
the
extent
the
divergence
from
the
sentencing
United States v. Hernandez–Villanueva, 473 F.3d 118,
123 (4th Cir. 2007).
due
of
deference
§ 3553(a)
to
the
factors,
variance.”
In conducting this review, we “must give
on
district
a
whole,
court’s
decision
justify
the
Gall, 552 U.S. at 51.
that
extent
the
of
the
Thus, even if this court
could have reasonably selected a different sentence from that
which
the
district
court
selected,
“this
‘insufficient
to
justify
reversal
of
United
v.
Pauley,
511
468,
States
F.3d
the
fact
alone
district
474
(4th
is
court.’”
Cir.
2007)
(quoting Gall, 552 U.S. at 51).
We conclude that Cruz’s sentence is procedurally and
substantively reasonable.
The court properly calculated Cruz’s
advisory Guidelines range and considered the parties’ arguments
in favor of a twenty-seven-month sentence.
Our review of the
record persuades us that the district court’s analysis of the 18
U.S.C. § 3553(a) (2006) sentencing factors as they applied to
Cruz’s case is adequate to support the upward variant sentence
ultimately imposed. *
We therefore hold that the variant sentence
*
Specifically, the court opined that Cruz’s history of
narcotics offenses and violent crimes, which reflected his
chronic recidivism, as well as the need to promote respect for
(Continued)
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is both procedurally and substantively reasonable.
See United
States v. Hill, __ F.3d __, 2012 WL 2899395, at *7-*8 (4th Cir.
July 17, 2012) (No. 11-4556) (holding upward variant sentence
that was sixty months’ greater than the defendant’s Guidelines
range was both procedurally and substantively reasonable because
the sentencing court’s “reasoned and reasonable decision that
the § 3553(a) factors, on the whole, justified the sentence” was
entitled to deference (internal quotation marks omitted)); see
also United States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th
Cir.) (holding an upward variant sentence that was six years
longer than the Guidelines range was substantively reasonable
because the district court expressly relied on several of the
§ 3553(a) factors to support the variance), cert. denied, 131 S.
Ct 2946 (2011).
We next consider Cruz’s arguments pertaining to the
validity of his conviction.
Cruz asserts that he would not have
pled guilty had he been properly informed (1) of the district
court’s authority to impose a sentence in excess of the advisory
Guidelines
range
or
(2)
that
he
would
not
be
permitted
to
the law, provide deterrence, and protect the community from any
future crime by Cruz, countenanced a sentence above the
Guidelines range.
The gravity of the offense also justified a
longer sentence, the court explained, because both prison
inmates and guards are frequently injured by the type of
homemade weapons Cruz possessed.
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withdraw his guilty plea in the event that the court rejected
the
Government’s
asserts
that
sentencing
his
attorney
recommendation.
was
Cruz
constitutionally
further
deficient
for
failing to advise him on these matters.
These claims are entirely belied by the record.
The
transcript of Cruz’s Fed. R. Crim. P. 11 hearing reflects that
Cruz was indeed informed of the court’s authority to impose a
sentence
reject
in
the
excess
of
Government’s
the
advisory
Guidelines
recommendation
as
to
range
the
and
to
appropriate
sentence, and that he would not be permitted to withdraw his
guilty plea if the court so exercised its sentencing discretion.
We therefore reject these arguments to undermine the validity of
Cruz’s
conviction
and
the
ineffective
predicated on the same allegations.
assistance
claim
Lastly, because this is an
Anders appeal, we have independently reviewed the plea colloquy
conducted in this case and discern no prejudicial infirmity in
that
proceeding.
Accordingly,
we
readily
affirm
Cruz’s
conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
We therefore affirm the judgment of the district court.
This court requires that counsel inform Cruz, in writing, of the
right to petition the Supreme Court of the United States for
further review.
If Cruz requests that a petition be filed, but
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counsel believes that such a petition would be frivolous, then
counsel
may
move
representation.
motion
was
in
this
court
for
leave
to
withdraw
from
Counsel’s motion must state that a copy of the
served
on
Cruz.
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.
AFFIRMED
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