US v. Jonathan Bustos-Anica

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00308-NCT-1 Copies to all parties and the district court/agency. [999946458].. [16-4194, 16-4198]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4194

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN VICTORINO BUSTOS-ANICA, a/k/a Jonathan Victorino
Bustos Anica, a/k/a Jonathan Victorino Bustos, a/k/a
Jonathan
Victorino-Bustos,
a/k/a
Jonathan
VictorinoBustogania, a/k/a Jonathan Victorino-Agustos,
Defendant - Appellant.

No. 16-4198

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN VICTORINO BUSTOS-ANICA, a/k/a
Bustos, a/k/a Jonathan Anica-Bustos,

Jonathan

Victorino

Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge.
(1:15-cr-00308-NCT-1; 1:14-cr00324-NCT-1)

Submitted:

September 22, 2016

Decided:

October 13, 2016

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Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant
Federal
Public
Defender,
Winston-Salem,
North
Carolina, for Appellant.
Ripley Rand, United States Attorney,
Lisa B. Boggs, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jonathan Victorino Bustos-Anica, a native and citizen of
Mexico, pled guilty in October 2015 to illegal reentry after
removal

and

(2012).

deportation,

in

violation

of

8

U.S.C.

§

1326(a)

Based on a total offense level of 10 and a criminal

history

category

of

III,

Bustos-Anica’s

advisory

Sentencing

Guidelines range was 10 to 16 months’ imprisonment.
In

February

2016,

a

petition

to

revoke

Bustos-Anica’s

supervised release (imposed in a prior § 1326 proceeding) was
filed, based on his violation of a condition that he remain
outside

the

United

States

during

his

term

of

supervision.

Bustos-Anica admitted the violation, as evidenced by his guilty
plea in October 2015.
range,

based

on

a

The relevant advisory policy statement

Grade

B

violation,

was

6

to

12

months’

imprisonment.
The

district

court

consolidated

the

two

cases

for

sentencing and imposed a 16-month sentence on the substantive
offense

of

illegal

reentry

and

a

12-month

sentence

on

the

revocation of supervised release, to run consecutively, for a
total

term

arguing,

of

28

first,

months’
that

his

imprisonment.
revocation

Bustos-Anica
sentence

is

appeals,
plainly

unreasonable because the district court imposed the sentence to
run

consecutively

sentence

imposed

to,
on

rather
the

than

substantive
3

concurrently
offense.

with,
We

the

review

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sentences

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imposed

upon

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revocation

of

supervised

release

to

determine whether they “fall[] outside the statutory maximum” or
are otherwise “plainly unreasonable.”

United States v. Padgett,

788 F.3d 370, 373 (4th Cir.) (internal quotation marks omitted),
cert. denied, 136 S. Ct. 494 (2015).
whether

the

sentence

is

We must “first decide

unreasonable[,]

.

.

.

follow[ing]

generally the procedural and substantive considerations that we
employ in our review of original sentences.”
Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
revocation
posture

sentence,

we

concerning

apply

issues

“a

of

more
fact

In analyzing a

‘deferential
and

the

review

for

appellate

exercise

of

discretion’

than

sentences.”

United States v. Moulden, 478 F.3d 652, 656 (4th

Cir.

2007)

reasonableness

United States v.

(internal

quotation

marks

omitted).

[G]uidelines

“Only

if

a

revocation sentence is unreasonable must we assess whether it is
plainly so.”
A

Padgett, 788 F.3d at 373.

revocation

sentence

is

procedurally

reasonable

if

the

district court considered the policy statements in Chapter Seven
of the U.S. Sentencing Guidelines Manual and the applicable 18
U.S.C. § 3553(a) (2012) factors.
(2012).

Id.; see 18 U.S.C. § 3583(e)

The court must provide an adequate statement of reasons

for the revocation sentence it imposes, but this statement need
not be as specific or as detailed as that required in imposing
an original sentence.

United States v. Thompson, 595 F.3d 544,
4

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547 (4th Cir. 2010).

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A revocation sentence is substantively

reasonable if the court stated a proper basis for concluding
that the defendant should receive the sentence imposed.

Crudup,

461 F.3d at 440.
Here,

the

record

establishes

that

the

district

court

committed no procedural or substantive error in imposing the 12month revocation sentence.

The court considered the Chapter

Seven policy statements and the relevant § 3553(a) factors —
noting the number of Bustos-Anica’s prior deportations — and
imposed a sentence within the policy statement range.
Bustos-Anica

argues

that

the

court

should

have

Although

imposed

the

sentence to run concurrently with the sentence on the underlying
offense,
impose

he

concedes

sentences

defendant

is

to

that
run

currently

the

Guidelines

consecutively

serving.

See

instruct

to
USSG

any
§

courts

sentence
7B1.3(f),

to
the

p.s.

(2015) (providing that “[a]ny term of imprisonment imposed upon
the revocation of . . . supervised release shall be ordered to
be served consecutively to any sentence of imprisonment that the
defendant is serving”).
Second,

Bustos-Anica

argues

that

the

total

sentence

is

unreasonable because it is greater than necessary to achieve the
sentencing objectives of the Guidelines.
for

reasonableness

standard.”

“under

a

deferential

We review a sentence
abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).
5

This

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review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence.

Id. at 51.

In

determining procedural reasonableness, we consider whether the
district

court

properly

calculated

the

defendant’s

advisory

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

appropriate

sentence,

considered

the

18

U.S.C.

§ 3553(a)

factors, and sufficiently explained the selected sentence.
at 49-51.

Id.

If the sentence is free of significant procedural

error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.”

Id. at 51.

“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (emphasis
and

internal

quotation

marks

omitted),

and

“must

adequately

explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.”

Gall,

552 U.S. at 50.

An extensive explanation is not required as

long

satisfied

as

we

are

“‘that

[the

district

court]

has

considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’”

United

States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita
v. United States, 551 U.S. 338, 356 (2007)).
Here, the district court properly calculated the advisory
Guidelines range, heard argument of counsel, and provided an
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adequate
noting

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explanation
the

number

deportations.
sentencing

for
of

the

we

sentence

Bustos-Anica’s

Considered

hearing,

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in

the

conclude

imposed,
prior

context

that

the

specifically
removals

of

the

and

entire

district

court’s

explanation is sufficient to satisfy us that it “‘considered the
parties’ arguments and ha[d] a reasoned basis for exercising
[its] own legal decisionmaking authority.’”

United States v.

Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita, 551
U.S. at 356).
Accordingly,
dispense

with

contentions

are

we

oral

affirm
argument

adequately

Bustos-Anica’s
because

presented

in

the
the

sentence.
facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

7