United States v. Calvin Nez , 333 F. App'x 683 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-8-2009
USA v. Calvin Nez
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4368
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Recommended Citation
"USA v. Calvin Nez" (2009). 2009 Decisions. Paper 1215.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1215
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4368
_____________
UNITED STATES OF AMERICA
v.
CALVIN J. NEZ,
Appellant
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(07-cr-00368)
District Judge: Honorable James F. McClure, Jr.
Submitted Under Third Circuit LAR 34.1(a)
May 28, 2009
Before: FISHER, CHAGARES, and COWEN, Circuit Judges
(Filed: June 8, 2009)
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
Calvin Nez appeals from the District Court’s judgment of sentence. We will
affirm.
Nez was sentenced to a 200-month federal prison term for shooting a man in the
chest after fleeing the scene of a robbery. While serving that term, Nez attacked a fellow
inmate, stabbing him numerous times. Nez was convicted of assault based upon this
conduct. The District Court imposed a 63-month prison term to run consecutively to the
sentence he was already serving. Nez filed this appeal, arguing that the District Court’s
sentence was unreasonable.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court
has jurisdiction pursuant to 18 U.S.C. § 3742. This Court reviews the District Court’s
sentence for reasonableness, evaluating both its procedural and substantive underpinnings
using a deferential abuse of discretion standard. Gall v. United States, 128 S. Ct. 586,
594 (2007).
Nez argues that the District Court’s decision to impose a consecutive 63-month
sentence was unreasonable. Specifically, he argues that the sentence should have been
imposed to run concurrently (rather than consecutively) to the sentence he was already
serving.
This argument is meritless. The transcript of the sentencing hearing reveals that
the District Court used the correct methodology for determining Nez’s sentence. The
District Court analyzed the factors enumerated in 18 U.S.C. § 3553(a), announced its
sentence based upon that analysis, and then reiterated that “[i]n determining the particular
sentence to be imposed, the [District] Court considered all seven factors set forth in 18
2
United States Code, section 3553(a).” See Appendix (App.) 55-57.1
The District Court did not abuse its discretion in holding that, in light of those
factors, a consecutive sentence was necessary. For example, the offense of conviction
(stabbing a fellow inmate) was heinous. Coupled with the offense that landed him in
federal prison for 200 months in the first place, see Pre-Sentence Report ¶ 29; App. 54-
55, it revealed him to be particularly violent. The District Court reasonably balanced
these and other considerations in arriving at its sentence and, in so doing, determining that
a concurrent prison term (rather than a consecutive one) would not have sufficed.
For the above reasons, we will affirm the District Court’s judgment of sentence.
1
Nez complained that the District Court did not expressly state that it recognized
that it had the ability to impose a concurrent sentence. However, no such statement is
required. All that is required is consideration of the § 3553(a) factors, United States v.
Velasquez, 304 F.3d 237, 241-42 (3d Cir. 2002), and that is precisely what the District
Court did.
3