US v. Luis Guzmanvilla
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:00-cr-00174-JAB-4. Copies to all parties and the district court/agency. [999055162]. [12-4602]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS GUZMANVILLA, a/k/a Benito,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:00-cr-00174-JAB-4)
Submitted:
February 12, 2013
Decided:
March 4, 2013
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Luis
Guzmanvilla,
a
native
and
citizen
of
Mexico,
appeals the six-month sentence he received after the district
court
revoked
ordered
this
his
supervised
sentence
to
run
release.
The
consecutive
district
to
the
court
fifty-month
sentence it imposed in United States v. Guzman-Villa, No. 1:12cr-00044-JAB-1 (M.D.N.C.), in which Guzmanvilla pled guilty to
illegally reentering the United States after having been removed
as
an
aggravated
(b)(2) (2006).
release
felon,
in
violation
of
8
U.S.C.
§ 1326(a),
Both the substantive charge and the supervised
violation
were
predicated
on
Guzmanvilla’s
illegal
reentry, and both sentences were imposed in the same proceeding.
In this appeal, Guzmanvilla asserts that running the
six-month
revocation
sentence
consecutive
to
the
fifty-month
sentence renders the revocation sentence plainly substantively
unreasonable.
We disagree.
The district court has broad discretion in selecting
the sentence to impose upon revoking a defendant’s supervised
release.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010).
This
court
will
affirm
a
sentence
imposed
after
revocation of supervised release if it is within the governing
statutory range and not plainly unreasonable.
Crudup, 461 F.3d 433, 437-40 (4th Cir. 2006).
United States v.
“When reviewing
whether a revocation sentence is plainly unreasonable, we must
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first determine whether it is unreasonable at all.”
Thompson,
595 F.3d at 546; see United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007).
A sentence is procedurally reasonable if the district
court has considered the policy statements contained in Chapter
Seven of the Sentencing Guidelines and the applicable 18 U.S.C.
§ 3553(a)
(2006)
factors,
Crudup,
461
F.3d
adequately explained the sentence chosen. *
547.
at
440,
and
has
Thompson, 595 F.3d at
A sentence is substantively reasonable if the district
court states “a proper basis” for its imposition of a sentence
up to the statutory maximum.
Crudup, 461 F.3d at 440.
If,
after considering the above, we decide that the sentence is not
unreasonable, we will affirm.
Id. at 439.
Only if this court
finds the sentence unreasonable must it decide whether it is
“plainly” so.
Moulden, 478 F.3d at 657.
We hold that the revocation sentence is not plainly
substantively unreasonable.
The term of incarceration ordered
upon revoking Guzmanvilla’s supervised release is separate and
distinct from the sentence imposed on the substantive offense.
The revocation sentence is designed to punish the defendant’s
failure
to
abide
by
the
terms
*
of
his
supervised
Guzmanvilla does not claim that the district court
committed any procedural error in sentencing him on the
supervised release violation.
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Crudup, 461 F.3d at 437-38.
release.
Because the Government is
not constitutionally prohibited, by either the Ex Post Facto
Clause
or
the
Double
Jeopardy
Clause,
“from
prosecuting
and
punishing a defendant for an offense which has formed the basis
for revocation of supervised release,” United States v. Evans,
159 F.3d 908, 913 (4th Cir. 1998), it logically follows that the
court need not account for the sentence the defendant received
in
conjunction
with
that
substantive
offense
when
imposing
sentence on the supervised release violation.
Guzmanvilla’s argument also fails as it is contrary
to U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.3(f), p.s.
(2001), which specifically authorizes the sentencing court to
impose consecutive sentences in this precise situation.
indeed acknowledges this contrary authority.
the
Chapter
7
policy
statements
are
Counsel
Of course, because
not
binding
on
the
sentencing court, see Thompson, 595 F.3d at 546-57, the court
would have been free to run the sentences concurrent.
court’s
deference
proper.
Accord United States v. Johnson, 640 F.3d 195, 208 (6th
Cir.
2011)
sentencing
determining
to
this
(explaining
court
that,
should
whether
to
policy
although
consider
impose
statement
USSG
not
4
more
binding,
§ 7B1.3(f),
consecutive
this decision is a matter of discretion).
was
But the
sentences
p.s.
and
than
the
in
that
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After considering the permissible sentencing factors
and
defense
court
counsel’s
stated
a
arguments
proper
basis
for
in
mitigation,
the
the
district
within-policy-statement
range sentence it imposed in this case.
See Crudup, 461 F.3d at
440.
revocation
We
therefore
conclude
that
the
sentence
substantively reasonable and affirm the revocation judgment.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
is
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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