United States v. Alfredo Nunez , 595 F. App'x 253 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4607
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALFREDO HERNANDEZ NUNEZ, a/k/a Alfredo Nunez Henandez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:03-cr-70042-JLK-4)
Submitted: February 19, 2015 Decided: March 4, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Anthony
P. Giorno, First Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfredo Hernandez Nunez appeals the thirty-month sentence
imposed following the revocation of his supervised release term.
On appeal, Nunez challenges both the procedural and substantive
reasonableness of his sentence. Finding no error, plain or
otherwise, we affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will
affirm a revocation sentence that is within the prescribed
statutory range and not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). We first consider
whether the sentence is procedurally or substantively
unreasonable, employing the same general considerations applied
during review of original sentences. Id. at 438. In this
initial inquiry, we “take[] a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
reasonableness review for guidelines sentences.” United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted). If we find the sentence unreasonable,
we then must determine whether it is “plainly” so. Id. at 657.
A supervised release revocation sentence is procedurally
reasonable if the district court considered the Sentencing
Guidelines’ Chapter 7 advisory policy statements and the 18
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U.S.C. § 3553(a) (2012) factors applicable to the supervised
release revocation context, see 18 U.S.C. § 3583(e) (2012);
Crudup, 461 F.3d at 439, and provided sufficient explanation for
the sentence imposed, see United States v. Thompson, 595 F.3d
544, 547 (4th Cir. 2010). While a district court must explain
its sentence, the court “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
a post-conviction sentence.” Thompson, 595 F.3d at 547. A
revocation sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440.
On appeal, Nunez asserts that the district court’s
explanation for the sentence was inadequate to support the
upward variance sentence it imposed. He also argues that the
circumstances of the release violations and Nunez’s criminal
history were an inadequate basis for imposing an upward variance
sentence that was run consecutively to the state and federal
sentences imposed for the crimes underlying his release
violations.
We find these arguments unpersuasive. The court’s
statements clearly express concern for Nunez’s pattern of
criminal behavior, his failure to be deterred by prior sentences
and removal proceedings, and the likelihood that he would
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reoffend. The court did not abuse its discretion in imposing an
upward variance sentence on this basis. Moreover, while Nunez
challenges the reasonableness of the court’s decision to run his
sentence consecutively to his other sentences, we conclude that
this decision is reasonable. See USSG § 7B1.3(f), p.s.; United
States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011).
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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