Filed: Jun. 05, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4641 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS TORRES-AGUIRRE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:09-cr-00269-BR-1) Submitted: April 24, 2012 Decided: June 5, 2012 Before SHEDD, DAVIS, and DIAZ, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4641 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS TORRES-AGUIRRE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:09-cr-00269-BR-1) Submitted: April 24, 2012 Decided: June 5, 2012 Before SHEDD, DAVIS, and DIAZ, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curia..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS TORRES-AGUIRRE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00269-BR-1)
Submitted: April 24, 2012 Decided: June 5, 2012
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. William Ellis Boyle, OFFICE OF
THE UNITED STATES ATTORNEY, Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesus Torres-Aguirre appeals his conviction and the
144-month sentence imposed upon him after his guilty plea to
conspiracy to distribute more than 5 kilograms of cocaine, more
than 50 grams of cocaine base, and a quantity of heroin.
Torres-Aguirre’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states that he has
divined no meritorious grounds for appeal but questions whether
Torres-Aguirre’s trial counsel was unconstitutionally
ineffective with respect to several aspects of his sentencing.
Having reviewed the record, we affirm Torres-Aguirre’s
conviction but vacate his sentence and remand the case to the
district court for resentencing.
We review Torres-Aguirre’s sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). A sentence
imposed by a district court is procedurally unreasonable if the
district court committed a significant procedural error, “such
as failing to calculate (or improperly 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.”
Id.
2
Our precedent insists upon an adequate explanation of
the sentence imposed: “Regardless of whether the district court
imposes an above, below, or within-Guidelines sentence, it must
place on the record an individualized assessment based on the
particular facts of the case before it.” United States v.
Carter,
564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). This requirement is not overly onerous. Where
the district court imposed a within-Guidelines sentence, the
explanation may be “less extensive, while still individualized.”
United States v. Johnson,
587 F.3d 625, 639 (4th Cir. 2009),
cert. denied,
130 S. Ct. 2128 (2010). Moreover, the district
court “need not robotically tick through § 3553(a)’s every
subsection;” it must only provide “some indication” that it
considered the § 3553(a) factors with respect to the defendant
before it and also considered any nonfrivolous arguments raised
by the parties at sentencing. United States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006).
Nevertheless, “[t]he district court must ‘state in
open court’ the particular reasons supporting its chosen
sentence.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012) (quoting 18 U.S.C. § 3553(c) (2006)). And, while the
district court’s explanation “need not be elaborate or lengthy,”
Johnson, 587 F.3d at 639, it must be sufficient to allow for
“‘meaningful appellate review,’”
Carter, 564 F.3d at 330
3
(quoting Gall v. United States, 552 U.S. 38, 50 (2007)), such
that the appellate court need “not guess at the district court’s
rationale.”
Id. at 329.
In this case, Torres-Aguirre preserved his challenge
to the adequacy of the district court’s explanation “[b]y
drawing arguments from § 3553 for a sentence different than the
one ultimately imposed.” United States v. Lynn,
592 F.3d 572,
578 (4th Cir. 2010). Thus, our review is for abuse of
discretion, and any error must result in reversal unless it was
harmless.
Id. at 579.
As the record reveals, when the district court
sentenced Torres-Aguirre, it did not explain its selected
sentence in any detail, made no reference to any of the factors
enumerated in 18 U.S.C. § 3553(a) (2006), and failed to give
Torres-Aguirre’s “nonfrivolous reasons for imposing a different
sentence” explicit consideration.
Id. at 581 (quoting Rita v.
United States,
551 U.S. 338, 357 (2007)). We conclude that the
district court erred in leaving the record effectively bereft of
any reason for the sentence that it imposed. See
Carter, 564
F.3d at 330.
Nor can we deem the district court’s error harmless.
Even though “the extent of harm caused by [the] procedural
sentencing error [is] not immediately clear” in light of the
fact that Torres-Aguirre received a sentence that was well below
4
the applicable Guidelines range, Lynn, 592 F.3d at 585, we
cannot determine on the basis of the record “why the district
court deemed the sentence it imposed appropriate.”
Id. at 582
(quoting Carter, 564 F.3d at 330). Torres-Aguirre argued for a
sentence lower than the one that the district court ultimately
imposed, and the district court’s rejection of his nonfrivolous
arguments was entirely without explanation. Because we are left
only to speculate regarding the district court’s reasons for
choosing the sentence that it did, we vacate Torres-Aguirre’s
sentence and remand the case for resentencing. See id.;
Carter,
564 F.3d at 330. Given this disposition of the appeal, we have
no occasion to address the other sentencing errors asserted in
counsel’s Anders brief.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues
for appeal. We therefore affirm Torres-Aguirre’s conviction,
vacate his sentence, and remand for resentencing. This court
requires that counsel inform Torres-Aguirre, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Torres-Aguirre 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 Torres-Aguirre.
5
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 IN PART,
VACATED IN PART,
AND REMANDED
6
