US v. Asael Gomez-Jimenez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00274-D-2 and 5:12-cr-00274-D-1. Copies to all parties and the district court. [999667847]. [14-4572, 14-4696]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4572

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASAEL GOMEZ-JIMENEZ, a/k/a Luis Aguilar-Sierra,
Defendant - Appellant.

No. 14-4696

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WAYNE WIGGINS,
Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:12-cr-00274-D-2; 5:12-cr-00274-D-1)

Submitted:

August 20, 2015

Decided:

September 29, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

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Affirmed by unpublished per curiam opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina; Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Asael Gomez-Jimenez appeals his 324-month sentence pursuant
to a guilty plea to possession with intent to distribute cocaine
(Count 8) and eluding examination and inspection by immigration
officers

(Count

10),

and

a

jury

verdict

for

conspiracy

to

distribute and possess with intent to distribute 5 kilograms or
more of cocaine (Count 1) and distribution of cocaine (Count 5).
His

co-conspirator,

convictions

and

Anthony

resulting

Wiggins,

life

appeals

sentence

for

his

conspiracy

jury
to

distribute and possess with intent to distribute 5 kilograms or
more of cocaine (Count 1), possession with intent to distribute
28 grams or more of cocaine base (Count 6), and possession of a
firearm by a convicted felon (Count 7).
challenge

their

respective

sentences

On appeal, they both
as

procedurally

substantively

unreasonable.

Wiggins

additionally

the

court

denying

his

district

erred

in

Their appeals have been consolidated.

motion

argues
to

and
that

suppress.

We affirm.

We first address Wiggins’ appeal of the district court’s
denial of his motion to suppress.

We review factual findings

underlying a district court’s denial of a motion to suppress for
clear error and legal conclusions de novo.
Hill,

776

evidence

F.3d

in

the

243,

247

light

party prevailing below.

(4th

most

Cir.

2015).

favorable

to

the

United States v.
We

construe

the

Government,

the

United States v. Farrior, 535 F.3d 210,
3

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217 (4th Cir. 2008).

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The Government bears the burden of proof

in justifying a warrantless search or seizure.

United States v.

Watson, 703 F.3d 684, 689 (4th Cir. 2013).
The Fourth Amendment does not prohibit all searches and
seizures, merely those found to be unreasonable.
Jimeno, 500 U.S. 248, 250 (1991).

Florida v.

A warrantless search “is per

se unreasonable subject only to a few specifically established
and well-delineated exceptions,” one of which is “a search that
is conducted pursuant to consent.”

Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973) (internal quotation marks, alterations
and citations omitted).
of

the

property,

or

Such consent may be given by the owner
by

a

third-party

possessing

“common

authority over or other sufficient relationship to the premises
or effects” to be searched.
164, 171 (1974).
mutual

use

of

and

United States v. Matlock, 415 U.S.

Common authority is based upon the parties’
access

to

the

property,

such

that

it

is

reasonable to recognize that each party “has the right to permit
the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area
to

be

searched.”

consenting

party

Id.
does

at
not

171

n.7.

have

Moreover,

common

even

authority

if

the

over

the

property sought to be searched, a search will still be upheld
where an officer reasonably believes in the existence of such
authority.

See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).
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Having reviewed the record with the parties’ arguments in mind,
we conclude that the court did not err in concluding that the
officers

reasonably

believed

that

Wiggins’

girlfriend

had

authority to consent to a search of the residence, even if she
lacked actual authority.

Accordingly, we affirm the denial of

Wiggins’ motion to suppress.
We

review

the

reasonableness

of

Wiggins’

Jimenez’s sentences for abuse of discretion.

procedural

error,

such

as

improper

Gomez-

United States v.

Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).
for

and

We first review

calculation

of

the

Guidelines range, failure to consider the 18 U.S.C. § 3553(a)
(2012) sentencing factors, selecting a sentence based on clearly
erroneous facts, or failure to adequately explain the sentence.
Howard,

773

F.3d

at

examine

substantive

528.

Absent

reasonableness

totality of the circumstances.
properly

calculated

Guidelines

Id.

any
of

procedural

the

sentence

error,

we

under

the

Sentences within or below a

range

are

presumed

reasonable,

and this presumption “can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.”

United States v. Louthian, 756 F.3d 295,

306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
Because
statutory

of

Wiggins’

mandatory

imprisonment.

prior

minimum

felony

sentence

on

drug
Count

offenses,
1

was

his
life

Citing Wiggins’ “long criminal history” and “lack
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of respect for the law,” the district sentenced Wiggins to life
imprisonment on Counts 1 and 6, and 120 months on Count 7.
Relying
(2013),

on

Wiggins

Alleyne
argues

v.

United

that

the

States,

district

133

S.

court

Ct.

2151

violated

his

Fifth and Sixth Amendment rights by enhancing his sentence on
the basis of prior convictions that were neither alleged in the
indictment nor proven beyond a reasonable doubt.

Contrary to

Wiggins’ assertions, there was no error, plain or otherwise, in
the district court’s imposition of the enhanced penalty.
United

States

v.

Higgs,

353

F.3d

281,

324

(4th

Cir.

See
2003)

(reviewing for plain error a constitutional claim raised for the
first time on appeal).
In Alleyne, the Supreme Court held that the Sixth Amendment
requires a jury to find beyond a reasonable doubt any facts that
increase a defendant’s mandatory minimum sentence.
S. Ct. at 2163-64.

Alleyne, 133

The Alleyne Court recognized, and expressly

declined to reconsider, however, a narrow exception that allows
a judge to find that a defendant’s prior conviction occurred.
Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523
U.S.

224

(1998)).

“Almendarez-Torres

remains

good

law,

and

[this court] may not disregard it unless and until the Supreme
Court holds to the contrary.”

United States v. McDowell, 745

F.3d 115, 124 (4th Cir. 2014), cert. denied, 135 S. Ct. 942
(2015).

Accordingly, this argument is unavailing.
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Wiggins also asserts that the district court miscalculated
his Guidelines range on Count 6.

According to Wiggins, his

Guidelines range was 235 to 293 months.

Because Wiggins failed

to object below, this claim too is reviewed for plain error.
See United States v. Olano, 507 U.S. 725, 731-32 (1993) (stating
standard

for

plain

error

review).

Contrary

to

Wiggins’

assertions, the probation officer correctly grouped the three
counts

for

Guidelines

Sentencing
range

was

Guidelines
life

purposes.

imprisonment

The

because,

resulting

even

though

Wiggins’ offense level and criminal history category generated a
range

of

235

to

293

months,

the

statutory

mandatory

minimum

sentence on Count 1, life imprisonment, was greater than the
maximum of the applicable Guidelines range.

See U.S. Sentencing

Guidelines Manual § 5G1.2(b) (2013).
Wiggins also suggests that the district court cut short his
right to allocute at sentencing.

A defendant has a due process

right to address the court if he expresses a desire to do so.
Green v. United States, 365 U.S. 301, 304 (1961); Ashe v. North
Carolina, 586 F.2d 334, 336 (4th Cir. 1978); Fed. R. Crim. P.
32(i)(4)(ii) (right to allocution in federal cases).

Allocution

is the right to present a statement in mitigation of sentencing.
United States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004); Fed.
R. Crim. P. 32(i)(4)(ii).

However, that right is not unlimited.

Ashe, 586 F.2d at 336-37.

Allocution “may be limited both as to
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duration and as to content.
more

than

a

reasonable

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[The defendant] need be given no

time;

irrelevancies or repetitions.”

he

need

not

be

heard

on

Id. at 337.

Here, Wiggins was given an opportunity to speak prior to
the

imposition

of

his

sentence.

However,

when

it

became

apparent that Wiggins wished to argue the issue of guilt or
innocence, rather than in mitigation of his sentence, the court
intervened.

Even so, the court permitted Wiggins to continue

again with his allocution.

Having reviewed the transcript, we

conclude that Wiggins was not denied the right to allocute.
Last, Wiggins challenges the substantive reasonableness of
his sentence, primarily arguing that a life sentence was greater
than necessary.

However, a statutorily mandated sentence, which

Wiggins received, is per se reasonable.
224.

Farrior, 535 F.3d at

In light of the above, we affirm Wiggins’ convictions and

sentence.
Gomez-Jimenez was sentenced within his advisory Guidelines
range to 324 months’ imprisonment.

Defense counsel moved for a

variant sentence of 180 months based on Gomez-Jimenez’s lack of
criminal history, his newly acquired faith in prison, advanced
age

upon

release,

responsibilities.

impending

deportation,

and

family

The Government sought a sentence at the top

of the Guidelines range.

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In rendering a sentence, the district court stated that it
had

considered

all

of

the

parties’

arguments,

the

advisory

Guidelines range, and the various § 3553(a) factors.

Noting

Gomez-Jimenez played a “critical role” in the organization and
that

he

was

“committed

to

being

a

drug

dealer,”

the

court

stressed that “specific deterrence and general deterrence are
critical here in light of the serious nature of the conduct, the
entire

record,

[and

that

Gomez-Jimenez]

deserve[s]

a

very

serious punishment.”
Gomez-Jimenez first argues that the district court failed
to explain why it rejected his non-frivolous arguments for a
lesser

sentence,

unreasonable.

thus

rendering

his

sentence

procedurally

The district court stated that it had considered

the arguments proffered on Gomez-Jimenez’s behalf for a lesser
sentence.

The

court

noted,

however,

that

Gomez-Jimenez

was

involved in very serious drug offenses, and that he chose to
continue his drug activities even after his brothers pled guilty
to

drug

offenses.

Although

the

court

observed

that

Gomez-

Jimenez may have done “a little honest work,” it noted that he
“certainly spent the bulk of [his] time as a drug dealer.”

The

court further stated that his possible religious conversion in
prison was not mitigating.

The court also explained that it did

not

proposed

find

Gomez-Jimenez’s

downward

variance

to

180

months-or a sentence at the bottom of the Guidelines range-to be
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“remotely appropriate.”
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We conclude that the district court

explained

why

it

did

not

find

that

Gomez-Jimenez’s

his

arguments in mitigation compelling.
Gomez-Jimenez

also

contends

sentence

was

substantively unreasonable, arguing that his lack of criminal
history

and

sentence.

his

low

risk

of

recidivism

warranted

a

lesser

In a related argument, he maintains that the district

court gave too much weight to general deterrence, making his
sentence

greater
burden

The

than

necessary

rests

with

presumption

of

sentence

unreasonable

is

factors.”

to

the

reasonableness
when

punish

and

defendant

by

deter

to

rebut

the

demonstrating

“that

the

measured

against

the

§ 3553(a)

United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).
Jimenez’s

him.

case,

the

district

court

thoroughly

In Gomez-

considered

his

circumstances and history, and found that deterrence mandated
the chosen sentence.

The court’s explanation for its chosen

sentence was thorough and well-reasoned.

Simply stated, the

court

of

crimes

implicitly
and

organization

his

found

that

critical

outweighed

his

the

severity

role
lack

in

the
of

Gomez-Jimenez’s
drug-trafficking

prior

convictions.

Furthermore, Gomez-Jimenez’s assertion that he had a low risk of
recidivism was undermined by his continuing involvement in the
drug

trade

even

after

his

family
10

members

received

lengthy

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sentences.
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Gomez-Jimenez
of

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has

reasonableness

simply
accorded

failed
his

to

rebut

the

within-Guidelines

sentence.
Accordingly, we affirm the criminal judgments.

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

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