United States v. Valle , 376 F. App'x 332 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4381
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORLAN HERNAN VALLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (1:08-cr-00022-NCT-1)
Submitted: April 7, 2010 Decided: April 30, 2010
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Orlan Hernan Valle of using a
computer to attempt to persuade a person under the age of
eighteen to engage in a sexual activity for which Valle could be
charged, in violation of 18 U.S.C. § 2422(b) (2006). The
district court sentenced him to the statutory mandatory minimum
sentence of ten years to be followed by twenty-five years of
supervised release. On appeal, Valle contends that the evidence
was insufficient to convict him and that his supervised release
term is unreasonable. Finding no reversible error, we affirm.
Valle first challenges the sufficiency of the
evidence. We review de novo the district court’s decision to
deny a motion filed pursuant to Fed. R. Crim. P. 29. United
States v. Mehta, 594 F.3d 277, 279 (4th Cir. 2010). Where, as
here, the motion was based on a claim of insufficient evidence,
“[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); Mehta, 594 F.3d at 279. This court “confine[s]
reversal of a conviction on grounds of insufficient evidence to
cases where the prosecution’s failure is clear.” United
States v. Abu Ali, 528 F.3d 210, 234 (4th Cir. 2008) (internal
quotation marks and citation omitted), cert. denied, 129 S. Ct.
1312 (2009).
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With these standards in mind, we have reviewed the
trial transcript and conclude that the evidence supports Valle’s
conviction. See United States v. Pierson, 544 F.3d 933, 939
(8th Cir. 2008) (stating elements of offense), cert. denied, 129
S. Ct. 2431 (2009). Although Valle asserts that the Government
failed to prove he knew “Molly14Summers” was under sixteen years
of age by pointing to inconsistencies in the evidence that he
believes amounted to reasonable doubt, “we do not weigh the
evidence or assess the credibility of witnesses, but assume that
the jury resolved any discrepancies [in the testimony] in favor
of the government.” United States v. Kelly, 510 F.3d 433, 440
(4th Cir. 2007).
Next, Valle asserts that the district court imposed a
twenty-five-year supervised release term that was greater than
necessary to achieve the purposes set forth in 18 U.S.C.
§ 3553(a) (2006), and that the district court failed to provide
an adequate explanation for the chosen term. This court reviews
a sentence for reasonableness under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008) (“The
length of [defendant’s] term of supervised release is part of
his sentence and is reviewed for reasonableness.”), cert.
denied, 129 S. Ct. 1600 (2009). This review requires appellate
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consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
Before determining the length of a supervised release
term, a district court must consider the § 3553(a) factors. 18
U.S.C.A. § 3583(c) (West Supp. 2009); see United States v.
Miller, 594 F.3d 172, 183 (3d Cir. 2010) (stating that “[a]
sentencing judge is given wide discretion in imposing a term of
supervised release” as long as “that discretion is . . .
exercised within the parameters of 18 U.S.C. § 3583.”) (internal
quotation marks omitted). This court must assess whether the
district court considered the § 3553(a) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Gall, 552 U.S. at 49-50; see United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, this
court reviews the substantive reasonableness of the sentence,
“taking into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(internal quotation marks omitted).
Valle contends that the district court did not make an
individualized assessment of the facts before imposing a
twenty-five-year term of supervised release. Our review of the
record on appeal convinces us otherwise. The court considered
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Valle’s arguments and the dangerousness of his offense and found
compelling Valle’s admission that he continued to pursue a
meeting with an underage girl even knowing, legally and morally,
that he should not be doing so. We therefore conclude that the
district court adequately explained its decision and did not
abuse its discretion in imposing twenty-five years of supervised
release. See Lynn, 592 F.3d at 576-79 (stating standard of
review and discussing preservation of claim of procedural error
for appellate review).
To the extent Valle also challenges the substantive
reasonableness of his sentence, this court “may presume that a
sentence within the properly calculated [g]uideline[s] range is
reasonable.” United States v. Raby, 575 F.3d 376, 381 (4th Cir.
2009). Here, the twenty-five-year supervised release term is
well within the statutory maximum term of life imprisonment and
below the term suggested by the guidelines for a sex offense,
and Valle has not rebutted the presumption of reasonableness.
See 18 U.S.C.A. § 3583(k) (West Supp. 2009); U.S.S.G.
§ 5D1.2(b), p.s. (2007). We therefore conclude that the
supervised release term imposed by the district court is
substantively reasonable.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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