US v. Lucio Deleon-Ramirez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00039-REP-1 Copies to all parties and the district court/agency. [999218949].. [12-4642]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4642

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUCIO DELEON-RAMIREZ,
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-00039-REP-1)

Argued:

September 20, 2013

Decided:

October 16, 2013

Before MOTZ, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED:
Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
Michael Calvin
Moore, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Alexandria Virginia, Valencia D.
Roberts, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellant Lucio Deleon-Ramirez (“Appellant”) pleaded
guilty

to

a

violation

of

8

U.S.C.

§§

1326(a),

(b)(1)

for

illegally reentering the United States after removal subsequent
to

a

felony

granted

the

conviction.

At

Government’s

sentencing,

motion

for

an

the

district

upward

court

variance

and

sentenced Appellant to 48 months imprisonment and three years of
supervised

release.

Appellant

challenges

this

sentence,

asserting that the district court’s imposition of a sentence of
48 months imprisonment was unreasonable, and the district court
plainly

erred

in

imposing

a

sentence

of

three

years

of

supervised release notwithstanding the United States Sentencing
Guidelines

(“Guidelines”)

recommendation

against

imposing

supervised release on a deportable alien.
We conclude the sentence of imprisonment imposed by
the district court was substantively reasonable.

We further

conclude the sentence of three years of supervised release was
not plain error because imposing a term of supervised release on
a

deportable

alien

who

is

likely

to

illegally

country is an appropriate method of deterrence.

reenter

the

Accordingly, we

affirm.
I.
Appellant was born in Guatemala in 1977 and claims he
fled his native country for Mexico at a young age due to civil
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war.

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He also claims he suffered sexual abuse in both Guatemala

and Mexico.
when

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he

Appellant lived in Mexico until sometime in 1995,

first

illegally

entered

the

United

States.

Since

illegally entering the United States, Appellant has developed a
long pattern and practice of illegally reentering the country
after deportation.
On June 17, 2001, Appellant was arrested by the United
States

Boarder

Patrol

and

charged

with

an

“inadmissible

at

entry” misdemeanor in the United States District Court for the
Southern

District

of

Texas.

Appellant

pleaded

guilty

and

received a 90-day suspended sentence; he was then removed to
Mexico on June 18, 2001.
On June 22, 2001, Appellant was again encountered by
the

United

returned

to

States

Border

Mexico.

Patrol

Appellant

in

was

Texas
not

and

voluntarily

prosecuted

for

this

conduct and was only in Mexico a short time before once again
illegally returning to the United States.
On

February

13,

2004,

Appellant

was

encountered

by

Immigration and Customs Enforcement (“ICE”) Agents in Colorado
following
ordered

a

traffic

Appellant

stop.

removed

An
to

immigration
Mexico

on

judge
February

in

Colorado

25,

2004.

Again, Appellant was not prosecuted for this conduct and was in
Mexico only a few days before yet again returning to the United
States.
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On

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August

3,

2007,

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Appellant

was

convicted

in

the

Circuit Court of Richmond, Virginia, of driving with a suspended
license and sentenced to 90 days of incarceration with 60 days
suspended.
On

November

27,

2009,

Appellant

assault and battery in Richmond, Virginia.

was

arrested

for

Although Appellant

was not prosecuted for the assault charge, he was charged and
convicted of illegal reentry in the United States District Court
for

the

Eastern

District

of

Virginia

--

notably,

the

same

district court as in the instant matter.
During

his

sentencing

hearing

on

May

21,

2010,

Appellant stated to the district court, “I want to be deported
as soon as possible.

I want to take my family with me and never

come back to this country.
to this country.”
Appellant

to

seven

supervised release.

I want to say I am sorry for coming

J.A. 111. 1
months

The district court sentenced

imprisonment

and

one

year

of

In doing so, the district court stated,

Mr. Deleon-Ramirez, if you ever come
back to this country again illegally you
will be caught, you will be prosecuted, your
sentence will be a very long one. You came
about that far away from having a two-year
sentence today.
And if the government had
not [sic] been inclined to ask for it I
would have been inclined to give it.
So,
1

Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.

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you start off with that break. But you will
get no other break. You can’t come to this
country
without
complying
with
the
immigration laws no matter why you come.
J.A. 115.
Guatemala

After serving his sentence, Appellant was removed to
on

October

6,

2010.

Sometime

thereafter,

he

once

again illegally returned to the United States.
On February 26, 2012, ICE Agents located Appellant in
Chesterfield County, Virginia, where he was in jail awaiting
trial on charges of driving while intoxicated. 2

Thereafter, on

March 6, 2012, a federal grand jury in the Eastern District of
Virginia indicted Appellant on one count of illegal reentry, the
instant offense.

On April 25, 2012, Appellant pleaded guilty

and appeared before the district court on July 30, 2012, for
sentencing.
The Government moved for an upward variance, arguing
that

the

calculated

imprisonment

was

not

Guidelines
adequate

range

of

considering

10
the

to

16

nature

months
of

the

offense, the history and characteristics of Appellant, the need
to protect the public, and the need to deter Appellant’s future

2

Appellant was convicted of misdemeanor driving while under
the influence and misdemeanor driving without a license on June
13, 2012, and was sentenced to a total of 12 months
incarceration with ten months suspended, and three years of
probation.

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criminal conduct.

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The Government recommended a sentence of 60

months imprisonment and one year of supervised release.
In response, Appellant argued that the district court
should consider Appellant’s past history of alleged sexual abuse
and the conditions in Guatemala when deciding an appropriate
sentence.

Appellant suggested a within-Guidelines sentence of

14 months imprisonment as adequate deterrence.
done

when

he

was

sentenced

for

illegal

Just as he had

reentry

in

2010,

Appellant once again told the district court that he was sorry
and that he was going to take his children, leave this country
and not return.

Specifically, Appellant opined:

I just want to say that I did come back
into your country.
I did the wrong thing
coming back illegally, but I’m pretty sorry.
I have my two kids here, but now I’m going
to take back my kids to my country.
And I
will stay back there. If there is any way I
can come back -- I will come back, but
legally with the permission or visa.
Now I understand your law.
The last
two years in 2010 I didn’t understand.
I
know if you come back you’re going to get
this, okay.
Now I came back and I got -I’m here again, but the jail, it’s not for
me.
So I understand now that I don’t have
to come back.
J.A. 95–96.
Given

that

Appellant

had

illegally

entered

or

reentered the United States on multiple occasions, the district
court agreed with the Government that an upward variance was
warranted and varied Appellant’s sentence upward to 48 months
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imprisonment, to be followed by a three-year term of supervised
release.

At no time during the sentencing hearing or in any

filings before the district court did Appellant object to the
imposition of a term of supervised release.
On appeal, Appellant argues his sentence of 48 months
imprisonment is substantively unreasonable because (1) it overdeters

and

does

not

adequately

consider

the

nature

of

his

offense or his history and characteristics; and (2) it creates
an

unwarranted

sentencing

disparity.

Additionally,

Appellant

argues the district court committed plain error by imposing a
three-year
deported

term
upon

of

his

supervised
release

release

from

because

prison,

and

he

the

will

be

Guidelines

recommend against imposing supervised release on a deportable
alien.

The Government disputes Appellant’s contentions, arguing

that Appellant’s sentence is reasonable given his prior illegal
reentries,

and

the

district

court

was

not

prohibited

from

imposing a term of supervised release on Appellant.
II.
We
deferential

review

a

sentence

for

abuse-of-discretion

reasonableness

standard

applying

“[r]egardless

a
of

whether the sentence imposed is inside or outside the Guidelines
range.”

Gall

v.

United

States,

552

U.S.

38,

51

(2007).

Appellant concedes the district court committed no procedural
error,

therefore,

we

need

only
7

address

the

substantive

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reasonableness of Appellant’s sentence.
substantive

reasonableness

of

the

When considering the

sentence

imposed,

we

“take

into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.”

Id.

district

outside

court

decides

to

impose

a

sentence

“If the
the

Guidelines range, it must ensure that its justification supports
the ‘degree of the variance.’”

United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 50).
Appellant

concedes

that

he

did

not

object

to

the

imposition or length of a term of supervised release before the
district

court.

Therefore,

we

review

the

district

court’s

decision to impose a term of supervised release for plain error.
See

Fed.

substantial

R.

Crim.

rights

P.
may

52(b)
be

(“A

plain

considered

brought to the court’s attention.”).

even

error
though

that
it

affects
was

not

It is Appellant’s burden

to demonstrate the following: “(1) there [was] an error; (2) the
error [was] plain, meaning obvious or clear under current law;
and (3) the error . . . affect[ed] substantial rights.”

United

States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010) (internal
quotation marks omitted).

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III.
A.
Substantive Reasonableness
We

reject

Appellant’s

arguments

that

the

district

court over-deterred or failed to adequately consider either the
nature of Appellant’s offense or his history and characteristics
and that the district court created an unwarranted sentencing
disparity.

Pursuant to 18 U.S.C. § 3553(a), a sentencing court

must consider “the nature and circumstances of the offense and
the history and characteristics of the defendant,” “the need for
the sentence imposed . . . to afford adequate deterrence to
criminal conduct,” and “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found

guilty

(2)(B), (6).
“‘must

make

of

2008)

conduct.”

18

U.S.C.

§§

3553(a)(1),

In considering these factors, the sentencing court
an

presented.’”
Cir.

similar

individualized

assessment

based

on

the

facts

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

Gall

v.

United

States,

552

U.S.

38,

50

(2007)).
Here,

the

district

court

considered

Appellant’s

arguments about his personal history and violence in Guatemala.
Appellant urged the district court to take into consideration
the fact that he left Guatemala due to civil unrest and the
violence that he and his family faced there.
9

The district court

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so, 3

did

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but

in

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considering

Appellant’s

history

and

characteristics, it found more compelling Appellant’s history of
illegal reentry into the United States.
At

sentencing,

appropriate
considered

deterrence
that

the

for

neither

district

court

Appellant.

the

seven-month

The

discussed
district

sentence

the
court

Appellant

served for his first conviction, nor the threat of a two-year
sentence
Appellant
States.

by

the

from

court

at

continuing

his
to

first

illegally

sentencing,
reenter

the

deterred
United

In light of those considerations, the district court

determined, “[i]n fact, it would not be inappropriate to impose
a sentence approaching the statutory maximum of [ten] years in
order to [deter Appellant], but I think that would be greater
than is necessary.”

J.A. 97.

The district then decided on a

sentence of 48 months imprisonment.

In imposing sentence, the

district court stated,
The last time he was here before this
Court he was told that he was a hairsbreadth away from a 2-year sentence, but
that because the government had asked for a
lenient sentence of seven months this Court
agreed to that and that that was an

3

The district court stated, “[b]ut there’s no evidence that
[Appellant] was exposed to any of [the violence] or harmed by
any of it, . . . and so what you’re in essence asking me to do
is take into account the general conditions in a country that
don’t seem to have any particular pertinence to him.” J.A. 87.

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appropriate
sentence
under
all
circumstances.
What is clear now beyond question is
that the defendant has no respect for the
laws of the United States.
That even the
threat of a 2-year sentence certainly will
not deter him. It is necessary to impose a
sentence of sufficient length to deter him
from ever returning to this country again
illegally, and to serve as an example to
those who would take advantage of the
leniency afforded in the federal courts to
those
who
illegally
enter
and
then
immediately, or very closely thereafter,
come back to the United States illegally.
I find that it is necessary to impose
an extremely lengthy period of confinement
in order to protect the people of this
country, to promote respect for the law, and
to deter the defendant in view of his
repeated violations of the law.
J.A. 96–97.
Based
contrary

to

on

the

record

Appellant’s

before

assertions,

us,
the

it

is

clear

district

court

that
did

conduct a thorough, individualized assessment of the nature and
circumstances of the offense and the history and characteristics
of Appellant in light of the § 3553(a) factors.

Furthermore, it

was not an abuse of discretion for the district court to place
significant

emphasis

on

into the United States.
668

F.3d

95,

104-05

Appellant’s

repeated

illegal

reentry

See United States v. Rivera-Santana,

(4th

Cir.

2012)

(holding

that

upward

variance was justified based on the § 3553(a) factors where the
district court considered, inter alia, Rivera–Santana’s “dogged
defiance

and

lack

of

respect

for
11

the

law,

having

repeatedly

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reentered the United States illegally after being deported, and
then committing further criminal offenses”); cf. United States
v.

Savillon-Matute,

(determining

636

district

F.3d

court’s

119,

122

(4th

above-Guidelines

Cir.

2011)

sentence

was

reasonable under § 3553(a) where the district court considered,
inter alia, that “Savillon–Matute came back twice after being
deported”
court

(internal

imposed

a

quotation

sentence

marks

it

felt

omitted)).
was

The

adequate

district
to

deter

Appellant, was below the recommendation of the Government, and
was well below the statutory maximum of ten years.
Accordingly, we conclude the district court did not
abuse its discretion, and Appellant’s sentence of imprisonment
was substantively reasonable.
B.
Plain Error
Finally, Appellant argues the district court committed
plain error by imposing a three-year term of supervised release
because Appellant will be deported at the end of his term of
incarceration.

We disagree.

In attempt to support his position, Appellant points
to the Guidelines, arguing that a sentencing court “ordinarily
should not impose a term of supervised release in a case in
which

supervised

defendant

is

a

release
deportable

is

not

alien
12

required
who

by

likely

statute
will

be

and

the

deported

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after imprisonment.”

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U.S.S.G. § 5D1.1(c) (2011).

should read further, however.

Appellant

Appellant’s argument ignores the

Guidelines’ illumination on this point:
In a case in which the defendant is a
deportable alien specified in subsection (c)
and supervised release is not required by
statute, the court ordinarily should not
impose a term of supervised release. Unless
such a defendant legally returns to the
United
States,
supervised
release
is
unnecessary. If such a defendant illegally
returns to the United States, the need to
afford adequate deterrence and protect the
public ordinarily is adequately served by a
new prosecution. The court should, however,
consider imposing a term of supervised
release on such a defendant if the court
determines it would provide an added measure
of deterrence and protection based on the
facts and circumstances of a particular
case.
Id. at cmt. application n.5 (emphasis supplied).
It is clear, therefore, that the imposition of a term
of supervised release on Appellant, a deportable alien, was not
plain error.

The district court was permitted to impose such a

sentence based on the facts and circumstances of this particular
case, which is precisely what it did.

Under the circumstances,

it was not plain error for the district court to determine that
the imposition of a term of supervised release was a necessary
measure of deterrence in light of Appellant’s repeated illegal
reentries into the country after having been warned about such
conduct.

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IV.
For

the

foregoing

reasons,

the

judgment

of

the

district court is
AFFIRMED.

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