US v. Jesus Sanchez-Mendez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00037-REP-1. Copies to all parties and the district court/agency. [999089503]. [12-4640]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4640

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JESUS SANCHEZ-MENDEZ,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:12-cr-00037-REP-1)

Submitted:

March 28, 2013

Decided:

April 18, 2013

Before DAVIS, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jesus

Sanchez-Mendez

pled

guilty

without

a

plea

agreement to illegal re-entry by an aggravated felon, 8 U.S.C.
§§ 1326(a),

(b)(2)

(2006).

He

was

sentenced

to

thirty-six

months in prison, to be followed by a thirty-six-month term of
supervised release.

Sanchez-Mendez now appeals, contending that

his sentence is unreasonable.

We affirm.

I
We review a sentence for reasonableness, applying an
abuse-of-discretion standard.

Gall v. United States, 552 U.S.

38, 51 (2007); United States v. King, 673 F.3d 274, 283 (4th
Cir.), cert. denied, 133 S. Ct. 216 (2012).

We first examine

the sentence for “significant procedural error.”

Gall, 552 U.S.

at 51.

If we find the sentence to be procedurally reasonable,

we

then

will

consider

the

substantive

reasonableness

of

the

sentence, taking into account the totality of the circumstances.
United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.
2010).
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion.
abuse,

we

harmless.”

reverse

unless

we

conclude

that

If we find such
the

error

was

United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2

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2010).

Filed: 04/18/2013

However,

unpreserved

are reviewed for plain error.

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non-structural

sentencing

errors

Id. at 576-77.

II
Sanchez-Mendez’s total offense level was 13, and his
criminal
24-30

history

category

months.

was

The

IV,

for

district

a

Guidelines

court

range

determined

of

that

Sanchez-Mendez’s criminal history was sufficiently serious and
the likelihood of recidivism sufficiently great to justify an
upward departure pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.3(a)(1) (2011).
category

IV

The court concluded that criminal history

substantially

under-represented

criminal past for several reasons:
not

assigned

criminal

history

Sanchez-Mendez’s

five prior convictions were
points;

Sanchez-Mendez

had

consistently engaged in a variety of petty offenses since 2003;
he

had

continued

to

commit

crimes

despite

having

received

lenient treatment for his offenses; and he was not prosecuted —
and not assigned a criminal history point — for his initial
illegal entry into this country.

The court accordingly granted

the Government’s motion for upward departure and departed to
criminal history category VI, resulting in an offense level of
33-41 months.
In
thirty-six

sentencing
months

in

Sanchez-Mendez
prison,

the
3

within

court

this

considered

range

to

the

18

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U.S.C.A. § 3553(a)
other

things,

(West

the

2000

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Supp.

stated

court

&

2012)

that

the

factors.

selected

Among
sentence

reflected the defendant’s lack of respect for the law, the need
to deter similar conduct by others, the need to protect the
public from his criminal behavior, and the need to prevent his
again entering this country illegally.
Because Sanchez-Mendez requested a sentence below the
original

Guidelines

range,

he

adequately

preserved

his

claim

that the term of imprisonment was unreasonable, and our review
is for abuse of discretion.

See Lynn, 592 F.3d at 578.

When,

as here, the district court imposes a departure sentence, this
review requires us to consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from

the

sentencing

range.”

United

States

v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).

The

district court “has flexibility in fashioning a sentence outside
of the Guidelines range,” and need only “‘set forth enough to
satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis’” for its decision.
States

v.

(quoting

Diosdado-Star,
Rita

v.

United

630

F.3d

States,

(brackets omitted).

4

359,
551

364

U.S.

(4th
338,

United

Cir.
356

2011)

(2007))

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Our
district

review

court

Sanchez-Mendez

did

explained

the

record

abuse

thirty-six

Sanchez-Mendez’s
criminal

the

not

to

by

of

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its

history

discretion

months

district

prior

convinces

in

court,

offenses
category

that

in

the

sentencing

prison.

was

as

five

of

counted

not

First,

least

at

were

us

when

his

determined,

and

under-representation of criminal history “is an encouraged basis
for departure.”
(4th

Cir

United States v. Dixon, 318 F.3d 585, 588-89

2003).

recidivism.

Additionally,

Therefore,

the

there

decision

was
to

a

likelihood

depart

was

of

proper.

Further, the district court appropriately applied several of the
§ 3553(a) factors when selecting a sentence only twenty percent
above the highest end of the original Guidelines range.
King,

673

reasonable

F.3d

§ 3553(a)

as

at
it

factors

284
was

(concluding
adequately

that

“the

upward

supported

court

variant
by

determined

See

sentence

reference

to

required

the

sentence ultimately imposed”); Diosdado-Star, 630 F.3d at 366-67
(holding

upward

variant

sentence

six

years

longer

than

Guidelines range reasonable because the court expressly relied
on several § 3553(a) factors to support the variance).

III
Sanchez-Mendez

contends

that

the

three-year

supervised release was unreasonable for two reasons.
5

term

of

First, he

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maintains that the district court contravened the Guidelines,
which state that a district court “ordinarily should not impose
a

term

of

supervised

release

is

not

deportable

that

required

alien

imprisonment.”
the

who

by

in

a

likely

court’s

supervised

Sanchez-Mendez

did

in

and

the

will

which

supervised

defendant
deported

be

is

a

after

Second, Sanchez-Mendez claims

explanation

release

not

case

statute

USSG § 5D1.1(c).

district

imposing

release

was

object

of

its

reasons

inadequate.

to

imposition

for

Because

of

a

term

of

supervised release or argue in favor of a term different than
the one imposed, our review is for plain error.

See Lynn, 592

F.3d at 576-77.
We identify no such error in this case.
Guideline

does

not

prohibit

the

imposition

Notably, the

of

a

term

of

supervised release on deportable aliens, and we conclude that
the

district

court

did

not

abuse

its

supervised release on Sanchez-Mendez.

discretion

in

imposing

While the district court

did not specifically tie the § 3553(a) factors to the term of
supervised

release,

it

is

arguable

that

the

court

was

not

obligated to do so because Sanchez-Mendez did not challenge the
imposition of a term of release at sentencing.
many

of

the

§ 3553(a)

factors

that

the

court

In any event,
mentioned

in

imposing the term of imprisonment apply with equal force to the
imposition

of

the

supervised

release
6

term.

As

previously

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discussed, the court considered the particular facts of SanchezMendez’s case and found that an added measure of deterrence was
needed to keep him from again illegally entering this country
and to protect the public from his propensity to break the law.
Because the court expressly considered the circumstances of the
case in determining the supervised release term, we hold that
the court’s explanation was adequate, especially on plain error
review.

IV
We accordingly affirm.

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

7