US v. Jesus Rojas-Quintana

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:17-cr-00020-BO-1. Copies to all parties and the district court/agency. [1000265737]. [17-4522]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4522

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS ROJAS-QUINTANA, a/k/a Moises Acosta, a/k/a Moises Cano-Acosta,
a/k/a Cruz Ramirez-Acosta,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:17-cr-00020-BO-1)

Submitted: March 20, 2018

Decided: March 28, 2018

Before GREGORY, Chief Judge, and NIEMEYER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. MayParker, Barbara D. Kocher, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jesus Rojas-Quintana appeals the 18-month sentence imposed following his guilty
plea to illegal reentry into the United States after deportation following an aggravated
felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). Arguing that the district court
improperly treated his 2014 North Carolina drug conviction as a felony for which he was
sentenced to a term of imprisonment exceeding one year and one month, Rojas-Quintana
contends that the district court procedurally erred by incorrectly calculating his criminal
history points and his total offense level under the Sentencing Guidelines. We affirm.
We review a sentence for reasonableness, applying a “deferential abuse-ofdiscretion standard,” Gall v. United States, 552 U.S. 38, 41 (2007), and, if there was an
abuse of discretion, we will reverse unless the error was harmless, United States v. Lynn,
592 F.3d 572, 576 (4th Cir. 2010). “[A] district court should begin all sentencing
proceedings by correctly calculating the applicable Guidelines range.” Gall, 552 U.S. at
49. In evaluating the district court’s Guidelines calculations, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States v.
White, 771 F.3d 225, 235 (4th Cir. 2014).
A review of the district court record confirms that Rojas-Quintana has a prior
North Carolina conviction for possession with intent to sell or deliver cocaine for which
he received a sentence of 10 to 21 months’ imprisonment. Rojas-Quintana argues that,
because North Carolina’s Justice Reinvestment Act of 2011, N.C. Gen. Stat. §§ 15A1368 to 15A-1368.6 (2017), required the last nine months of this sentence to be served in
post-release supervision, the sentence imposed did not exceed one year and one month as
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required for application of U.S. Sentencing Guidelines Manual §§ 4A1.1(a),
2L1.2(b)(2)(C) (2016).
In determining a defendant’s criminal history category, the sentencing court must
“[a]dd 3 points for each prior sentence of imprisonment exceeding one year and one
month.” USSG § 4A1.1(a). “The term ‘sentence of imprisonment’ means a sentence of
incarceration and refers to the maximum sentence imposed.” USSG § 4A1.2(b)(1). In
the case of an indeterminate sentence set forth in a range of months, the length of a
sentence of imprisonment is the stated maximum number of months in that given range.
See USSG § 4A1.2 cmt. n.2.
In determining a defendant’s total offense level, the Guidelines provide that “[i]f,
before the defendant was ordered deported or ordered removed from the United States for
the first time, the defendant sustained a conviction for a felony offense (other than an
illegal reentry offense) for which the sentence imposed exceeded one year and one
month,” the district court must “increase [the base offense level] by 6 levels.” USSG
§ 2L1.2(b)(2)(C). “‘Sentence imposed’ has the meaning given the term ‘sentence of
imprisonment’” as set forth in USSG § 4A1.2. USSG § 2L1.2 cmt. n.2.
In United States v. Barlow, 811 F.3d 133 (4th Cir. 2015), we considered the effect
of North Carolina’s Justice Reinvestment Act and held that the term of post-release
supervision is part of the term of imprisonment. Id. at 138-40. Based on our decision in
Barlow, we find that the 21-month sentence imposed for Rojas-Quintana’s 2014 state
drug offense exceeded one year and one month and, therefore, the district court properly
assessed three criminal history points for the prior conviction and properly applied the
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six-level enhancement under USSG § 2L1.2(b)(2)(C) to Rojas-Quintana’s base offense
level. Accordingly, we affirm the district court's judgment.
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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