United States v. Abusada , 346 F. App'x 939 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR DOMINGO AMASHTA ABUSADA, a/k/a Joe Leonard Melvin,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00112-RJC-1)
Submitted: September 28, 2009 Decided: October 9, 2009
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William R. Terpening, ANDERSON TERPENING, PLLC, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Domingo Amashta Abusada pled guilty pursuant to
a plea agreement to falsely representing himself to be a United
States citizen (Count 2), in violation of 18 U.S.C. § 911(2006), and reentering the United States after having been
deported as an aggravated felon (Count 4), in violation of
8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced
Abusada to thirty-six months on Count 2, the statutory maximum
sentence, and a concurrent thirty-seven-month term of
imprisonment on Count 4, a sentence at the bottom of the
advisory guidelines range for that count. On appeal, Abusada’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that, in his view, there are no
meritorious issues for appeal but questioning whether the
district court erred by enhancing Abusada’s offense level by
sixteen levels and whether the sentence is reasonable. Abusada
was informed of his right to file a pro se supplemental brief
but has not done so. Finding no reversible error, we affirm.
Abusada’s counsel contends that the district court
erred in applying a sixteen-level enhancement under U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2007), where
Abusada initially received authorization to reenter the United
States after his deportation. Abusada concedes, however, that
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such authorization had expired by the time he was arrested and
charged with illegal reentry of a removed alien in 2008.
Counsel also suggests that, if Abusada reentered
illegally, he should have received only a two-year sentence
based upon a 1990 letter from the United States Department of
Justice. Section 1326 provides a two-year maximum sentence for
any alien who illegally enters the United States after having
been deported. 8 U.S.C. § 1326(a). If the alien’s removal was
subsequent to a conviction for an aggravated felony, the
statutory maximum increases to twenty years. Id. § 1326(b)(2).
Even if Abusada initially was permitted to reenter the United
States, he conceded that his reentry in 2008 after his
deportation as an aggravated felon was not authorized, thereby
subjecting him to the twenty-year statutory maximum sentence.
In addition, although Abusada contends that his sentence should
be capped at two years, we have rejected a similar claim. See
United States v. Aquino-Chacon, 109 F.3d 936, 939 n.2 (4th Cir.
1997) (collecting cases rejecting due process and equitable
estoppel claims based upon erroneous information provided by
government).
Abusada also challenges the reasonableness of his
sentence. We review a sentence for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, __, 128 S. Ct. 586, 597 (2007). This review requires
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appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. In determining whether a
sentence is procedurally reasonable, this court must first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 596-97. This
court then must consider whether the district court considered
the factors in 18 U.S.C. § 3553(a) (2006), analyzed the
arguments presented by the parties, and made “an individualized
assessment based on the facts presented.” Gall, 128 S. Ct. at
597; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Finally, we review the substantive reasonableness of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007).
Our review of the record leads us to conclude that the
district court properly calculated Abusada’s guidelines range.
The court also properly considered the advisory guidelines range
and the § 3553(a) factors and related those factors to the
circumstances of Abusada’s case. Thus, we find no procedural
error in Abusada’s sentence.
Turning to the substantive reasonableness of the
sentence, Abusada contends that his thirty-seven-month sentence
is excessive. However, we presume that a sentence imposed
within the properly calculated guidelines range is reasonable.
Rita v. United States, 551 U.S. 338, 347 (2007); United
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States v. Smith, 566 F.3d 410, 414 (4th Cir. 2009). Applying
the presumption of reasonableness to Abusada’s within-guidelines
sentence, we find that the district court did not abuse its
discretion in sentencing Abusada.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of the right to petition the Supreme Court of the United States
for further review. If the client 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 the client. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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