US v. Moises Rivas-Posada

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00154-LMB-1 Copies to all parties and the district court/agency. [999903430].. [15-4581]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4581

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES RIVAS-POSADA, a/k/a Moises Rivers, a/k/a Moises Rivas
Posada, a/k/a Moises Rivera, a/k/a Moises Posada,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:15-cr-00154-LMB-1)

Submitted:

July 28, 2016

Decided:

August 3, 3016

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Caroline S.
Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Angela
Mulunesh
Fiorentino-Rios,
Assistant
United
States
Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Moises

Rivas-Posada

agreement,

to

pled

unlawful

guilty,

reentry

pursuant

after

to

removal

a

plea

following

conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012).
Posada

to

36

release.

months’

Counsel
386

meritorious

grounds

sentence

is

imprisonment

has

California,

U.S.

The district court sentenced Rivas-

filed

738

a

brief

(1967),

for

appeal

reasonable.

and

3

pursuant

stating

but

years’
to

that

Anders

there

questioning

Rivas-Posada

supervised

has

are

whether
not

filed

v.
no
the
a

supplemental pro se brief, despite receiving notice of his right
to do so.

We affirm in part, vacate in part, and remand for

further proceedings.
We

review

deferential

a

sentence

for

abuse-of-discretion

reasonableness,
standard.”

applying

Gall

v.

“a

United

States, 552 U.S. 38, 41 (2007).

This review entails appellate

consideration

procedural

of

both

the

reasonableness of the sentence.
procedural
court

reasonableness,

properly

calculated

we
the

and

Id. at 51.
consider

In determining

whether

defendant’s

substantive

the

advisory

district
Sentencing

Guidelines range, gave the parties an opportunity to argue for
an

appropriate

(2012)

sentence,

factors,

sentence.

and

Id. at 49-51.

considered

sufficiently

the

18

U.S.C.

explained

the

§

3553(a)
selected

If there are no procedural errors, we
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then

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consider

the

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substantive

reasonableness

of

evaluating “the totality of the circumstances.”

a

sentence,

Id. at 51.

A

sentence is presumptively reasonable if it is within or below
the Guidelines range, and this “presumption can only be rebutted
by

showing

that

the

sentence

is

unreasonable

against the 18 U.S.C. § 3553(a) factors.”

when

measured

United States v.

Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
In this case, the record establishes that Rivas-Posada’s
below-Guidelines

sentence

of

36

months’

procedurally and substantively reasonable.

imprisonment

is

The district court

correctly calculated Rivas-Posada’s criminal history category,
total offense level, and Guidelines range, provided the parties
the

opportunity

considered
adequate

to

argue

Rivas-Posada’s
and

highlighting

for

an

appropriate

allocution.

individualized
Rivas-Posada’s

The

explanation
risk

of

sentence,

court

of

its

recidivism.

and

provided

an

sentencing,
Contrary

to

counsel’s assertion, the district court considered the age of
Rivas-Posada’s felony convictions, and adequately described why
it

was

not

persuaded

that

this

factor

warranted

further

variance.
Turning to the supervised release portion of the sentence,
in the case of a deportable alien who will likely be deported
after

imprisonment,

the

Sentencing

Guidelines

provide

that,

unless otherwise required by statute, “[t]he court ordinarily
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should

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not

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impose

a

term

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of

supervised

release.”

Sentencing Guidelines Manual § 5D1.1(c) (2014).

U.S.

However, if the

district court concludes that a supervised release term would
provide “an added measure of deterrence and protection based on
the facts and circumstances of a particular case,” then “[t]he
court

should

release.”

. . .

consider

imposing

Id. § 5D1.1 cmt. n.5.

a

term

of

supervised

Although the district court

should make such a finding on the record, “where a sentencing
court (1) is aware of Guidelines section 5D1.1(c); (2) considers
a defendant’s specific circumstances and the § 3553(a) factors;
and (3) determines that additional deterrence is needed, nothing
more is required.”

United States v. Aplicano-Oyuela, 792 F.3d

416, 424 (4th Cir. 2015) (alterations and internal quotation
marks omitted).
In the instant case, there is no evidence that the district
court was aware of the applicability of USSG § 5D1.1(c).

The

presentence investigation report failed to mention § 5D1.1, and
neither the district court nor the parties referenced it during
the sentencing hearing or in sentencing memoranda.
this

failure

unreasonable.

to

consider

Accordingly,

USSG
we

4

§ 5D1.1(c)
vacate

the

is

We conclude
procedurally

portion

of

the

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sentencing imposing supervised release and remand for further
proceedings. ∗
Pursuant to Anders, we have reviewed the remainder of the
record in this case and have found no other meritorious grounds
for appeal.

Accordingly, we affirm Rivas-Posada’s conviction

and 36-month term of imprisonment.
This court requires that counsel inform Rivas-Posada, in
writing,

of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Rivas-Posada requests that

a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Rivas-Posada.
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 IN PART,
VACATED IN PART,
AND REMANDED

∗

We express no opinion
supervised release in this case.

5

regarding

the

propriety

of