US v. Asael Gomez-Jimenez


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 1 of 11 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4572 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ASAEL GOMEZ-JIMENEZ, a/k/a Luis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. Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 2 of 11 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 3 of 11 PER CURIAM: Asael Gomez-Jimenez appeals his 324-month sentence pursuant to a guilty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 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 217 (4th Cir. 2008). Pg: 4 of 11 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). 4 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 5 of 11 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 5 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 6 of 11 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. 6 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 7 of 11 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 7 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 duration and as to content. more than a reasonable Pg: 8 of 11 [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. 8 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 Pg: 9 of 11 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 9 Appeal: 14-4572 Doc: 57 Filed: 09/29/2015 “remotely appropriate.” sufficiently Pg: 10 of 11 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 Appeal: 14-4572 Doc: 57 sentences. presumption Filed: 09/29/2015 Gomez-Jimenez of Pg: 11 of 11 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 11

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