United States v. Aleman , 263 F. App'x 385 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALBERTO ALEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00010-2)
Submitted: January 17, 2008 Decided: February 11, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North
Carolina, for Appellant. Donald David Gast, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On September 12, 2005, Alberto Aleman and Bruce Lee
Richardson entered the Champion Credit Union, displaying handguns.
The pair ordered bank personnel to get on the ground, then jumped
over the counter and stole $16,887.23. Three months later, on
December 19, 2005, Aleman and Richardson entered the United
Community Bank, again displaying handguns. Aleman and Richardson
again ordered customers and bank personnel to the ground at
gunpoint, then jumped over the counter and stole $30,344. Aleman
was ultimately charged, along with two others, in a nineteen count
indictment with various bank robbery and firearms counts. Pursuant
to a plea agreement, Aleman pled guilty to two counts of bank
robbery by force, violence and intimidation, in violation of 18
U.S.C.A. § 2113(a) (West 2000 and Supp. 2007) and to two counts of
using and carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000
and Supp. 2007).
Prior to Aleman’s sentencing, the probation office
prepared a presentence report. Aleman’s offense level combined
with a criminal history category of I resulted in an advisory
guidelines range of 57 to 71 months’ imprisonment. As noted in the
presentence report, sections 924(c)(1)(A)(ii) and 924(c)(1)(C)(I)
mandated that Aleman be sentenced to consecutive sentences of seven
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years on the first § 924(c) violation and twenty-five years on the
second § 924(c) violation.
Also prior to sentencing, defense counsel filed a
sentencing memorandum. In the memorandum, counsel argued that the
district court should impose a variance sentence on Aleman’s bank
robbery convictions. In support of a variance sentence, counsel
noted that Aleman committed the robberies to financially support
his family. Aleman refused to participate in a third robbery
committed by his co-defendants because the family was no longer in
financial difficulty. In support of sentencing leniency, counsel
also argued that Aleman was estranged from his mother during his
childhood; Aleman immigrated to the United States from Cuba at age
thirteen; Aleman is able to speak, read, and write both Spanish and
English even though he has had little formal education; and Aleman
had no prior criminal record.
At sentencing, the district court, in accordance with
Aleman’s advisory guidelines range, sentenced Aleman to fifty-seven
months’ imprisonment on both bank robbery counts, to be served
concurrently, and to seven years on the first § 924(c) violation
and twenty-five years on the second § 924(c) violation, to be
served consecutively. Aleman timely noted an appeal and has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967).* In
*
Aleman was informed of his right to file a pro se
supplemental brief. He has elected not to do so.
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his brief, Aleman argues that his sentence of 441 months was
unreasonable. Aleman points to the language in 18 U.S.C.A.
§ 3553(a) (West 2000 and Supp. 2007) that a district court shall
impose a sentence “sufficient, but not greater than necessary” to
comply with the goals of sentencing. According to Aleman, the
district court should have imposed a variance sentence of no more
than one month imprisonment on each of the bank robbery convictions
due to the mandatory minimum thirty-two year sentence he received
on the two firearms convictions and due to the positive attributes
listed in his sentencing memorandum. Aleman’s argument is without
merit.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court must engage in a multi-step process at sentencing.
After calculating the correct advisory guidelines range, the
sentencing court must consider the guidelines range, any relevant
factors set forth in the guidelines, and the factors in 18 U.S.C.
§ 3553(a); then the court may impose sentence. United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). On appeal, this court
will affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” United States v. Moreland,
437 F.3d 424, 432 (4th Cir. 2006). A post-Booker sentence may be
unreasonable for procedural or substantive reasons. However, a
sentence that falls within a properly calculated advisory
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guidelines range is presumed to be reasonable. Rita v. United
States, 127 S. Ct. 2456, 2462 (2007).
Aleman’s sentence was procedurally reasonable. Section
3553(a)(1) requires the district court to consider the nature and
circumstances of the offense and the history and characteristics of
the defendant. Aleman’s counsel described in detail Aleman’s
positive attributes in both a sentencing memorandum and at
sentencing, and there is no indication in the record that the
district court failed to consider those arguments raised by
counsel. Rather, prior to sentencing Aleman, the district court
stated specifically that it had considered the factors in § 3553(a)
and the advisory nature of the guidelines. The court then imposed
a sentence at the bottom of Aleman’s advisory guidelines range on
his bank robbery convictions and a sentence in conformity with the
statutory requirements of § 924(c) on the firearms convictions.
Also, Aleman’s sentence was substantively reasonable.
Aleman received concurrent sentences of 57 months’ imprisonment on
each of two bank robbery convictions that the Assistant United
States Attorney accurately described as an extraordinarily violent
series of robberies. As noted in the presentence report, during
each robbery, customers and bank personnel were ordered to the
ground at gunpoint. Moreover, during the December robbery, the
bank branch manager was forced to the ground and told that if he
moved, he would be killed. Accordingly, Aleman has failed to rebut
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the presumption of reasonableness afforded his advisory guidelines
sentence of 57 months on both bank robbery convictions.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the judgment of the district court. This court
requires that counsel inform Aleman, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Aleman 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 Aleman.
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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