United States v. Noe Aguilera-Aguila , 435 F. App'x 260 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOE AGUILERA-AGUILA, a/k/a Jose Manuel Rosales,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00061-BO-1)
Submitted: May 24, 2011 Decided: June 17, 2011
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noe Aguilera-Aguila pled guilty, without a plea
agreement, to one count of reentering the United States after
having been deported as an aggravated felon, in violation of 8
U.S.C. § 1326 (2006). The district court sentenced Aguilera-
Aguila to twenty-four months’ imprisonment. Aguilera-Aguila
timely appealed. For the reasons that follow, we vacate
Aguilera-Aguila’s sentence and remand for resentencing.
Included in Aguilera-Aguila’s criminal history score
was a point assessed pursuant to U.S. Sentencing Guidelines
Manual § 4A1.1(e) (2009), for having committed the instant
offense within two years after his release from custody for a
prior qualifying offense. On appeal, Aguilera-Aguila contends
that his sentence is procedurally unreasonable because the
district court failed to give adequate consideration to the
United States Sentencing Commission’s proposed elimination of
the § 4A1.1(e) “recency” enhancement.
We review a sentence for both procedural and
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). In determining procedural reasonableness, this court
considers whether the district court properly calculated the
defendant’s advisory guidelines range, considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
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Id. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). An
extensive explanation is not required as long as the appellate
court is satisfied “‘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.) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007) (alterations in original),
cert. denied, 131 S. Ct. 165 (2010).
When a claim concerning the reasonableness of a
sentence is preserved, this court reviews the issue for an abuse
of discretion. United States v. Lynn, 592 F.3d 572, 576, 579
(4th Cir. 2010). If the district court abused its discretion,
this court will “reverse unless . . . the error was harmless.”
Id. at 576. Where the district court commits error, the
Government bears the burden of demonstrating that the error was
harmless. Id. at 585.
The Government contends that because Aguilera-Aguila
did not object at the sentencing hearing to the assessment of
the criminal history point under the USSG § 4A1.1(e) recency
enhancement, this court should review for plain error the
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adequacy of the district court’s consideration of the proposed
amendment to eliminate the recency enhancement. However, as the
Government concedes, Aguilera-Aguila raised the issue in his
written objections. “[O]nce a party raises an objection in
writing, if he subsequently fails to lodge an oral on-the-record
objection, the error is nevertheless preserved for appeal.”
United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir.
2003); see also Lynn, 592 F.3d at 583-84 (party may preserve its
sentencing objections through written papers or in-court
arguments prior to sentencing). By filing written objections to
the assessment of the single criminal history point under USSG
§ 4A1.1(e) based on the pending elimination of the recency
enhancement, Aguilera-Aguila preserved his issue for appeal.
“Sentencing courts are statutorily required to state
their reasons for imposing a particular sentence.” United
States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010). In this
case, the sentencing transcript is devoid of any explanation for
Aguilera-Aguila’s sentence. Accordingly, we conclude that the
district court abused its discretion by failing to adequately
address Aguilera-Aguila’s objection and his sentence.
Once it is determined that a court abused its
discretion, the next inquiry is whether the error was harmless.
Lynn, 592 F.3d at 576. Under the harmless error standard, “the
[G]overnment may avoid reversal only if it demonstrates that the
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error did not have a substantial and injurious effect or
influence on the result” and this court can say “that the
district court’s explicit consideration of [the defendant’s]
arguments would not have affected the sentence imposed.”
Boulware, 604 F.3d at 838 (internal quotation marks omitted;
alterations in original).
The Government cannot meet this burden. Aguilera-
Aguila’s total offense level was thirteen. With the one-point
§ 4A1.1(e) recency enhancement, Aguilera-Aguila had seven
criminal history points, which resulted in a Guidelines range of
twenty-four to thirty months. USSG ch. 5, pt. A (sentencing
table). Had he not received a criminal history point under USSG
§ 4A1.1(e), he would have had six criminal history points, which
would have placed him in criminal history category III,
resulting in a Guidelines range of eighteen to twenty-four
months. USSG ch. 5, pt. A (sentencing table). Aguilera-
Aguila’s twenty-four month sentence thus is at the bottom of the
Guidelines range with the recency enhancement, but at the top of
the Guidelines range if the recency enhancement is removed. The
single criminal history point under USSG § 4A1.1(e) increased
Aguilera-Aguila’s criminal history category and thus had a
significant impact on his Guidelines range. The Government
cannot demonstrate that Aguilera-Aguila’s sentence was not
affected by the district court’s failure to explicitly consider
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Aguilar-Aguila’s objections pertaining to the proposed
Guidelines amendment to eliminate the recency provision because
it cannot show that, if the court had adequately considered the
proposed amendment, it would not have downwardly departed or
varied from the Guidelines range.
Accordingly, we vacate Aguilera-Aguila’s sentence and
remand for resentencing consistent with this opinion. 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.
VACATED AND REMANDED
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