US v. Juan Deras-Lovo

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00375-LMB-1 Copies to all parties and the district court/agency. [999206800].. [13-4102]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4102

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUAN JOSE DERAS-LOVO, a/k/a Richard Chacon Melgar, a/k/a
Juan Jose Lovo, a/k/a Jaun Jose Lovo, a/k/a Juan Jose
Lovo-Deras, a/k/a Juan Richard Chacon Melgar,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:12-cr-00375-LMB-1)

Submitted:

September 20, 2013

Decided:

October 2, 2013

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Joshua Paulson,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney,
Alexandria,
Virginia,
for
Appellant.
Julia
K.
Martinez, 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Unpublished opinions are not binding precedent in this circuit.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:
Juan Jose Deras-Lovo appeals from his conviction and
twenty-four month sentence, entered pursuant to his guilty plea
to

illegal

aggravated
pursuant

reentry

after

felony.
to

being

deported

On
v.

Anders

appeal,

counsel

California,

subsequent
has

386

filed

U.S.

738

to
a

an

brief

(1967),

concluding that there are no meritorious issues for appeal, but
questioning

whether

the

substantively reasonable.
has filed a brief.

sentence

is

procedurally

and

Neither Deras-Lovo nor the Government

We affirm.

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

Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009).
for

“significant

calculate

(or

In so doing, we first examine the sentence

procedural

improperly

error,”

including

calculating)

the

“failing

Guidelines

to

range,

treating the Guidelines as mandatory, failing to consider the
[18

U.S.C.]

based

on

§ 3553(a)

clearly

[(2006)]

erroneous

explain the chosen sentence.”

factors,

facts,

or

selecting
failing

a

sentence

to

adequately

Gall, 552 U.S. at 51.

We presume

on appeal that a sentence within a properly calculated advisory
Guidelines range is reasonable.

United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551

2

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U.S. 338, 346-56 (2007) (upholding presumption of reasonableness
for within-Guidelines sentence).
Counsel

first

questions

whether

the

district

court

provided an adequate explanation for Deras-Lovo’s sentence.
district
range,

court

properly

responded

to

calculated

the

parties’

explained the chosen sentence.
F.3d

325,

330

(4th

Cir.

the

advisory

arguments,

and

The

Guidelines
sufficiently

See United States v. Carter, 564

2009)

(district

court

must

conduct

individualized assessment based on the particular facts of each
case, whether sentence is above, below, or within the Guidelines
range).

The court recognized Deras-Lovo’s main argument that

the United States was the only home he had ever known when
granting

him

a

departure

for

cultural

assimilation.

In

addition, the court explicitly noted that it declined to give a
variance

sentence

based

behavior

and

fact

the

deportation.

We

upon
that

conclude

Deras-Lovo’s
he

that

paid
there

no

repeated
heed

was

to

no

criminal
his

error

prior

in

the

district court’s explanation of the given sentence.
If we find a sentence procedurally reasonable, we also
must
given

examine
the

the

substantive

totality

of

the

reasonableness

of

circumstances.

the

United

sentence
States

v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012).

A sentencing court

must

not

“impose

necessary,

to

a

sentence
comply

sufficient,

with

the
3

but

purposes

greater

set

forth

than
in

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[§ 3553(a)(2)].”

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18 U.S.C. § 3553(a).

Even if we would reach a

different sentencing result, this fact alone is insufficient to
justify

reversal

of

the

district

court.

United

States

v.

Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation
marks omitted).
Here,

counsel

avers

that

Deras-Lovo’s

sentence

was

substantively unreasonable because the illegal reentry guideline
is fundamentally flawed.

First, Deras-Lovo contends that his

sentence was unreasonably high due to his marijuana conviction
being used both to increase his offense level and to calculate
his criminal history score.

He also avers that his marijuana

conviction is not as serious as other crimes that would trigger
the twelve-level increase.

As such, Deras-Lovo concludes that

the twelve-level increase in his offense level resulted in a
Guidelines range which exceeded that which was necessary to do
justice in his case.
However, we have held that use of a prior conviction
to

increase

both

permissible

for

the

the

felony conviction.

offense

offense

level

of

and

reentry

criminal
by

an

history

alien

after

is
a

United States v. Crawford, 18 F.3d 1173,

1179 (4th Cir. 1994) (holding it is not impermissible double
counting

to

characteristic
§ 2L1.2(b)

treat

prior

under

(2012)

and

felony

U.S.
to

as

Sentencing

count
4

it

in

a

specific

offense

Guidelines

Manual

calculating

criminal

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history,

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where

criminal

prior

history

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offense

points

accounted

and

for

six

sixteen-level

of

twelve

enhancement).

Further, there was no substantive error in correctly calculating
the offense level based upon Deras-Lovo’s marijuana conviction.
See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (finding that, even in light of significant sentencing
disparities, failure to impose below-Guidelines sentence was not
substantively unreasonable given totality of the circumstances).
Next,

Deras-Lovo

contends

that

his

sentence

was

substantively unreasonable because it was longer than necessary
to deter him, as his longest prior sentence was only twelve
months.

We conclude that the district court did not abuse its

discretion.
almost

Deras-Lovo illegally reentered the United States

immediately

after

being

deported.

Thus,

it

was

reasonable to believe that a substantially longer sentence was
necessary to deter him from reentering again.

Moreover, the

district court did not base its sentence entirely on deterrence,
as it also noted the nature and circumstances of Deras-Lovo’s
offense and his criminal history.
Finally,

Deras-Lovo

See 18 U.S.C. § 3553.

asserts

that

his

sentence

was

substantively unreasonable because the district court’s reliance
on

USSG

§ 2L1.2

was

erroneous.

Specifically,

Deras-Lovo

contends that a sentence based upon § 2L1.2 is not entitled to a
presumption

of

reasonableness

in
5

this

court

because

the

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deportation

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enhancement

is

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not

based

on

empirical

data

as

required by Kimbrough v. United States, 552 U.S. 85, 110 (2007)
(holding that district court may vary from the Guidelines based
on policy disagreements).

The Kimbrough opinion, however, did

not require district courts to consider the presence or absence
of

empirical

data

underlying

the

Guidelines,

see

United

States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir.), cert.
denied,

133

courts

to

sentences

S.

Ct.

274

discard

the

“based

on

(2012),

nor

did

presumption

of

non-empirically

it

permit

appellate

reasonableness

grounded

for

Guidelines.”

United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009).
Here,

while

the

district

court

did

not

explicitly

address Deras-Lovo’s Kimbrough argument, * the court considered
his criminal history, his current crime, and his lack of ties to
El Salvador and found that, while a departure was warranted for
cultural

assimilation,

appropriate.

The

fact

a

within-Guidelines
that

the

relevant

range

sentence

Guidelines

are

was
not

“empirically-based” does not provide a basis to second guess the
district

court’s

conclusion

that

*

a

Guidelines

sentence

was

This argument was raised in Deras-Lovo’s motion for a
departure based on cultural assimilation, which was granted,
although not to the extent sought by Deras-Lovo. Deras-Lovo did
not reargue this issue at the sentencing hearing when seeking a
variance sentence.

6

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appropriate.

See

Pg: 7 of 7

Mondragon-Santiago,

564

F.3d

at

367.

Therefore, we hold that the district court did not abuse its
discretion when it relied on USSG § 2L1.2.
Pursuant to Anders, we have examined the record for
any

meritorious

affirm

issue

Deras-Lovo’s

and

have

conviction

found
and

none.

Accordingly,

sentence.

This

we

court

requires that counsel inform Deras-Lovo in writing of his right
to petition the Supreme Court of the United States for further
review.

If Deras-Lovo requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.
was

served

on

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof
Deras-Lovo.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

7