United States v. Jesus Cervantez-Ruiz ( 2019 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 18-4700
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JESUS CERVANTEZ-RUIZ,
    Defendant - Appellant.
    No. 18-4701
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JESUS CERVANTEZ-RUIZ,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern District of North Carolina,
    at Wilmington. Louise W. Flanagan, District Judge. (7:17-cr-00024-FL-1; 7:18-cr-
    00069-FL-1)
    Submitted: June 20, 2019                                         Decided: June 24, 2019
    Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public
    Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
    for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
    Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
    OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
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    PER CURIAM:
    Jesus Cervantez-Ruiz pled guilty to illegal reentry of an aggravated felon, in
    violation of 
    8 U.S.C. § 1326
    (a), (b)(2) (2012). The district court sentenced Cervantez-
    Ruiz to 16 months’ imprisonment, the high end of his advisory Sentencing Guidelines
    range. Based on this new criminal conduct, the court revoked Cervantez-Ruiz’s term of
    supervised release on a prior conviction for the same offense and sentenced him to a
    consecutive term of 10 months’ imprisonment, the high end of his advisory policy
    statement range. Cervantez-Ruiz timely appealed both sentences, and we consolidated
    the appeals. We affirm.
    Cervantez-Ruiz first argues that both of his sentences are procedurally
    unreasonable because the district court did not adequately explain its reasons for the
    chosen sentences and did not sufficiently respond to Cervantez-Ruiz’s arguments for
    lesser sentences. We review an original criminal sentence for reasonableness “under a
    deferential abuse-of-discretion standard.” Gall v. United States, 
    552 U.S. 38
    , 41 (2007);
    see United States v. King, 
    673 F.3d 274
    , 283 (4th Cir. 2012). “[F]or every sentence—
    whether above, below, or within the Guidelines range—a sentencing court must place on
    the record an individualized assessment based on the particular facts of the case before
    it.” United States v. Lynn, 
    592 F.3d 572
    , 576 (4th Cir. 2010) (internal quotation marks
    omitted). Although the sentencing judge “need not robotically tick through the [18
    U.S.C.] § 3553(a) [(2012)] factors,” United States v. Helton, 
    782 F.3d 148
    , 153 (4th Cir.
    2015) (internal quotation marks omitted), he must “set forth enough to satisfy the
    appellate court that he has considered the parties’ arguments and has a reasoned basis for
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    exercising his own legal decision-making authority,” United States v. Blue, 
    877 F.3d 513
    ,
    518 (4th Cir. 2017) (internal quotation marks omitted).
    We review a sentence imposed upon revocation of supervised release to determine
    whether it “falls outside the statutory maximum or is otherwise plainly unreasonable.”
    United States v. Padgett, 
    788 F.3d 370
    , 373 (4th Cir. 2015) (internal quotation marks
    omitted). A supervised release revocation sentence is procedurally reasonable if the
    district court has considered the Sentencing Guidelines’ Chapter Seven advisory policy
    statement range and the 
    18 U.S.C. § 3553
    (a) factors it is permitted to consider in a
    supervised release revocation case, see 
    18 U.S.C. § 3583
    (e) (2012); United States v.
    Crudup, 
    461 F.3d 433
    , 439-40 (4th Cir. 2006), and has adequately explained the chosen
    sentence, although it need not explain the sentence in as much detail as when imposing an
    original sentence, United States v. Thompson, 
    595 F.3d 544
    , 547 (4th Cir. 2010).
    Based on our review of the record, we conclude that the district court’s
    explanation for Cervantez-Ruiz’s within-range sentences did not render either sentence
    procedurally unreasonable. The district court was actively engaged in the sentencing
    hearing, heard and appropriately responded to argument from counsel and allocution
    from Cervantez-Ruiz, and sufficiently explained its reasoning to allow for meaningful
    appellate review.
    Cervantez-Ruiz next argues that his sentences violate the Double Jeopardy Clause
    of the Fifth Amendment because he is being punished twice for the same conduct. As
    Cervantez-Ruiz acknowledges, however, this claim is foreclosed by Circuit precedent.
    See United States v. Woodrup, 
    86 F.3d 359
    , 361-63 (4th Cir. 1996) (holding Double
    4
    Jeopardy Clause does not prohibit Government from criminally prosecuting and
    punishing offense which has formed basis for revocation of term of supervised release).
    We therefore affirm the district court’s judgments.        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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