United States v. Lopez-Vera , 432 F. App'x 244 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4584
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO LOPEZ-VERA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00226-TDS-1)
Submitted: May 17, 2011 Decided: May 27, 2011
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Milton B. Shoaf, Jr., ADDISON & SHOAF, Salisbury, North
Carolina, for Appellant. Angela Hewlett Miller, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2003, Ricardo Lopez-Vera pleaded guilty to
illegally reentering the United States after having been
deported following a conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326 (a), (b)(2) (2006). The district
court sentenced Lopez-Vera to a term of imprisonment followed by
supervised release. Subsequently, Lopez-Vera pleaded guilty to
illegal reentry and to violating the terms of his supervised
release. The district court sentenced Lopez-Vera to
eighty-seven months of imprisonment for the illegal reentry
conviction and eighteen months of imprisonment for the
supervised release revocation, to be served consecutively.
Lopez-Vera now appeals and appellate counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in imposing
consecutive terms of imprisonment. Lopez-Vera was informed of
his right to file a pro se supplemental brief but has not done
so. Finding no error, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
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calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. When “multiple terms of
imprisonment are imposed on a defendant at the same time, . . .
the terms may run concurrently or consecutively,” 18 U.S.C.
§ 3584(a) (2006), and the district court must take into account
the § 3553(a) factors in making that decision. 18 U.S.C.
§ 3584(b) (2006). Finally, we then “‘consider the substantive
reasonableness of the sentence imposed.’” United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S.
at 51). This court presumes on appeal that a sentence within a
properly calculated advisory Guidelines range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence).
Moreover, this court reviews a sentence imposed as a
result of a supervised release violation to determine whether
the sentence was plainly unreasonable. United States v. Crudup,
461 F.3d 433, 437 (4th Cir. 2006). The first step in this
analysis is a determination of whether the sentence was
unreasonable. Id. at 438. This court, in determining
reasonableness, follows generally the procedural and substantive
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considerations employed in reviewing original sentences. Id.On review, we will assume a deferential appellate posture
concerning issues of fact and the exercise of discretion. Id.
at 439.
Although a district court must consider the policy
statements in Chapter Seven of the Sentencing Guidelines along
with the statutory requirements of 18 U.S.C. § 3583 (2006) and
§ 3553(a), “‘the court ultimately has broad discretion to revoke
its previous sentence and impose a term of imprisonment up to
the statutory maximum.’” Crudup, 461 F.3d at 439 (quoting
United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005))
(internal quotation marks omitted). If a sentence imposed after
a revocation is not unreasonable, we will not proceed to the
second prong of the analysis — whether the sentence was plainly
unreasonable. Crudup, 461 F.3d at 438-39. We have thoroughly
reviewed the record and conclude that the sentences imposed by
the district court are reasonable, and the court did not err in
imposing consecutive terms of imprisonment. We therefore need
not determine whether the revocation sentence was plainly
unreasonable.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Lopez-Vera, in
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writing, of the right to petition the Supreme Court of the
United States for further review. If Lopez-Vera 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 Lopez-Vera. 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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