United States v. Ana Rodriguez , 436 F. App'x 247 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4972
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANA RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (4:10-cr-00025-FL-1)
Submitted: May 31, 2011 Decided: June 22, 2011
Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Ana Rodriguez appeals from her eighteen-month sentence
imposed upon revocation of her supervised release. On appeal,
she asserts that her sentence is procedurally and substantively
unreasonable. We affirm.
Rodriguez contends that her sentence was procedurally
unreasonable for three reasons. First, she argues that the
court did not provide sufficient reasoning for its sentence.
Second, she maintains that the court relied on a nonmandatory
Guidelines policy statement to run the violation sentence
consecutive to the sentence on new criminal conduct alleged in a
separate North Carolina indictment. And third, Rodriguez
asserts that the court improperly used the revocation sentence
to punish her for the new criminal conduct. Rodriguez also
states on appeal that the sentence imposed exceeded a term of
imprisonment sufficient but not greater than necessary to
achieve the purposes of sentencing.
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In
making this determination, the court first considers whether the
sentence is unreasonable. Id. at 438. “This initial inquiry
takes a more deferential appellate posture concerning issues of
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fact and the exercise of discretion than reasonableness review
for guidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007). In making its review, the court
“follow[s] generally the procedural and substantive
considerations that [are] employ[ed] in [the] review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Crudup, 461 F.3d at 438-39.
A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the 18 U.S.C. § 3553(a)
(2006) factors that it is permitted to consider. See 18 U.S.C.
§ 3583(e) (2006); Crudup, 461 F.3d at 438-40. A sentence
imposed upon revocation of release is substantively reasonable
if the district court stated a proper basis for concluding that
the defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. A reviewing court
should affirm if the sentence is not unreasonable. Id. at 439.
Only if a sentence is found procedurally or substantively
unreasonable will the court “decide whether the sentence is
plainly unreasonable.” Id. “[T]he court ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.” Id.3
When imposing sentence, the district court must
provide individualized reasoning:
The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority. . .
. Where the defendant . . . presents nonfrivolous
reasons for imposing a different sentence than that
set forth in the advisory Guidelines, a district judge
should address the party’s arguments and explain why
he has rejected those arguments.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
Carter rationale applies to revocation hearings; however, “[a]
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post
conviction sentence.” United States v. Thompson, 595 F.3d 544,
547 (4th Cir. 2010).
Here, the district court considered Rodriguez’s
argument for a concurrent sentence and rejected it. The court
noted that the decision to run the revocation sentence
concurrently or consecutively to the sentence for the new
criminal conduct was within its discretion and that it was
exercising its discretion to impose a consecutive sentence.
There is no error on this basis. The court explicitly
considered the Guidelines range and the § 3553 factors that it
was permitted to consider. Although Rodriguez argues that her
sentence punishes her for the new criminal conduct alleged in
the North Carolina indictment, the court did not make any
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statements in this regard. This speculative argument does not
support a procedural sentencing error. As such, we conclude
that Rodriguez’s sentence was procedurally reasonable.
We next turn to the substantive reasonableness of
Rodriguez’s sentence. Given the court’s broad discretion, we
conclude that the reasons stated were substantively sufficient.
The court rejected Rodriguez’s request for a concurrent sentence
after hearing argument and considering Rodriguez’s concession
that she continued the cigarette trafficking conspiracy while on
supervised release. Thus, imposition of the eighteen-month
sentence for Rodriguez’s violation of supervised release was not
an abuse of discretion.
Moreover, Rodriguez faces a heavy burden in
challenging her sentence. Even if she could establish that her
sentence was unreasonable, she would still need to show that it
was plainly unreasonable. A sentence is “plainly unreasonable”
if it “run[s] afoul of clearly settled law.” Thompson, 595 F.3d
at 548. Rodriguez has not cited clearly settled law that was
violated by the district court’s sentence, and the record does
not reveal any such obvious error.
We therefore affirm the sentence imposed upon
revocation of supervised release. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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