US v. Erasmo Ruiz

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to expedite decision [999030607-2] Originating case number: 1:12-cr-00048-MR-DLH-1. Copies to all parties and the district court/agency. [999086416]. [12-4838]

Appeal: 12-4838

Doc: 32

Filed: 04/15/2013

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4838

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERASMO HERRERA RUIZ,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:12-cr-00048-MR-DLH-1)

Submitted:

April 11, 2013

Decided:

April 15, 2013

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, John D. Pritchard, Special Assistant United States
Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 12-4838

Doc: 32

Filed: 04/15/2013

Pg: 2 of 4

PER CURIAM
Erasmo

Ruiz

pled

guilty

to

illegal

re-entry

of

a

deported alien in violation of 8 U.S.C. § 1326(a) (2006), and
was sentenced to nineteen months’ imprisonment.
contends

that

his

unreasonable.

sentence

is

procedurally

On appeal, Ruiz

and

substantively

Because of the short length of his sentence, Ruiz

also moves to expedite our review.

We deny the motion and

affirm.
We review a sentence for reasonableness, applying a
deferential

abuse-of-discretion

States,

U.S.

552

38,

51

Gall

standard.

(2007);

see

also

v.

United

United

States

v.

Diosdado–Star, 630 F.3d 359, 363 (4th Cir.), cert. denied, 131
S. Ct. 2946 (2011).

We first review for significant procedural

errors, including whether the district court failed to consider
the

§ 3553(a)

reasonable,

we

factors.
then

If

we

find

consider

a

sentence

substantive

applying a totality of the circumstances test.

procedurally

reasonableness,
Id.

Whether a

sentence is substantively unreasonable is considered “in light
of the totality of the circumstances.”

United States v. Worley,

685 F.3d 404, 409 (4th Cir. 2012).

In reviewing whether a

district court’s decision to vary from the applicable Guidelines
range is substantively reasonable, this court “‘may consider the
extent of the deviation [from the applicable Guidelines range],
but must give due deference to the district court’s decision
2

Appeal: 12-4838

that

Doc: 32

the

justify

Filed: 04/15/2013

[18
the

U.S.C.
extent

§

Pg: 3 of 4

3553(a)

of

the

(2006)]

factors,

variance.’”

on

United

a

whole,

States

v.

Diosdado-Star, 630 F.3d 359, 366 (4th Cir.) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)), cert. denied, 131 S. Ct.
2946 (2011).
We conclude that Ruiz’s sentence is both procedurally
and

substantively

reasonable.

calculated

the

applicable

consider

any

improper

non-frivolous

arguments

The

advisory
factors,
for

a

district

Guidelines
and

within

court

properly

range,

did

addressed
Guidelines

not

Ruiz’s
sentence.

Though the district court varied upwards from the Guidelines
range,

we

reasons

conclude

for

imposing

that

the

a

district

higher

court

sentence.

The

gave

sufficient

district

court

based its sentence in large part on the need to deter offenders
who, like Ruiz, illegally re-enter the country after committing
a drug trafficking crime.
long

criminal

history

The district court emphasized Ruiz’s
and

the

trafficking crime in particular.

seriousness

of

his

drug

Based on these considerations

we conclude that the district court gave Ruiz an individualized
assessment and stated sufficient grounds for his sentence.
Accordingly, we deny the motion to expedite as moot
and affirm the district court’s judgment.

We dispense with oral

argument because the facts and legal contentions are adequately

3

Appeal: 12-4838

Doc: 32

Filed: 04/15/2013

Pg: 4 of 4

presented in the material before this court and argument will
not aid the decisional process.

AFFIRMED

4