US v. Marlon Viera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00377-F-1 Copies to all parties and the district court/agency. [999999012].. [16-4287]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4287

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON DANILLO VIERA, a/k/a Marlon Caranza-Dera,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:15-cr-00377-F-1)

Submitted:

December 28, 2016

Decided:

January 6, 2017

Before TRAXLER, KEENAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
John Stuart Bruce, United States Attorney, Jennifer
P. May-Parker, First Assistant United States Attorney, Kristine
L. Fritz, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
Based

on

Marlon

Danillo

Viera’s

guilty

plea

to

illegal

reentry, the district court revoked his supervised release for a
prior offense and sentenced him to 10 months’ imprisonment.

The

court ordered Viera to serve his revocation sentence consecutive
to his 30-month sentence for illegal reentry.
arguing

that

the

district

court

erred

revocation sentence to run consecutively.

when

Viera appeals,
it

ordered

the

For the reasons that

follow, we affirm.
We will affirm a revocation sentence if it falls within the
applicable statutory maximum and is not “plainly unreasonable.”
United States v. Padgett, 788 F.3d 370, 373 (4th Cir.), cert.
denied, 136 S. Ct. 494 (2015).

Under this standard, we first

determine whether the sentence is procedurally or substantively
unreasonable.

United States v. Webb, 738 F.3d 638, 640 (4th

Cir.

In

2013).

doing

so,

“we

strike

a

more

deferential

appellate posture than we do when reviewing original sentences.”
Padgett, 788 F.3d at 373 (internal quotation marks omitted).
“Only

if

we

find

the

sentence

whether it is plainly so.”

unreasonable

must

we

decide

Webb, 738 F.3d at 640 (internal

quotation marks omitted).
A

revocation

sentence

is

procedurally

reasonable

if

the

district court considered the policy statements in Chapter Seven
of the Sentencing Guidelines Manual, the policy-statement range,
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and the applicable 18 U.S.C. § 3553(a) (2012) factors.
788 F.3d at 373; see 18 U.S.C. § 3583(e) (2012).
sentence

is

substantively

reasonable

if

the

identified a proper basis for its sentence.
Crudup,

461

F.3d

433,

440

(4th

Cir.

Padgett,

A revocation

district

court

United States v.

2006).

We

reasonable a sentence within the applicable range.

presume

Padgett, 788

F.3d at 373.
Here, the district court imposed a reasonable revocation
sentence.

Upon

revoking

Viera’s

supervised

release,

the

district court considered the appropriate factors under Chapter
7 and § 3553(a) and sentenced Viera to a sentence within the
policy-statement
basis

for

the

range.

The

sentence

court

based

on

also

Viera’s

conduct while under supervised release.
Viera’s

contention,

the

court

identified

did

pattern

a

of

proper
illegal

Moreover, contrary to

not

err

by

imposing

a

consecutive sentence for the supervised release violation merely
because

the

same

conduct

criminal conviction.

provided

the

basis

for

a

separate

See United States v. Johnson, 138 F.3d

115, 118 (4th Cir. 1998).

Because the district court imposed a

reasonable revocation sentence, we decline to overturn it on
appeal.
Accordingly, we affirm the district court’s judgment.
dispense

with

oral

argument

because

3

the

facts

and

We

legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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