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United States v. Alfredo Nunez, 14-4607 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-4607 Visitors: 35
Filed: Mar. 04, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4607 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ALFREDO HERNANDEZ NUNEZ, a/k/a Alfredo Nunez Henandez, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:03-cr-70042-JLK-4) Submitted: February 19, 2015 Decided: March 4, 2015 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirm
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4607


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ALFREDO HERNANDEZ NUNEZ, a/k/a Alfredo Nunez Henandez,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Jackson L. Kiser, Senior
District Judge. (4:03-cr-70042-JLK-4)


Submitted:   February 19, 2015            Decided:   March 4, 2015


Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Anthony
P. Giorno, First Assistant United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Alfredo Hernandez Nunez appeals the thirty-month sentence

imposed following the revocation of his supervised release term.

On appeal, Nunez challenges both the procedural and substantive

reasonableness       of    his    sentence.           Finding   no    error,       plain     or

otherwise, we affirm.

     “A    district       court    has    broad       discretion      when       imposing     a

sentence      upon   revocation          of        supervised   release.”              United

States v. Webb, 
738 F.3d 638
, 640 (4th Cir. 2013).                                    We will

affirm    a   revocation         sentence      that     is   within       the     prescribed

statutory range and not plainly unreasonable.                         United States v.

Crudup, 
461 F.3d 433
, 439-40 (4th Cir. 2006).                        We first consider

whether       the    sentence        is        procedurally          or        substantively

unreasonable, employing the same general considerations applied

during review of original sentences.                         
Id. at 438.
             In this

initial inquiry, we “take[] a more deferential appellate posture

concerning issues of fact and the exercise of discretion than

reasonableness       review        for    guidelines          sentences.”              United

States v. Moulden, 
478 F.3d 652
, 656 (4th Cir. 2007) (internal

quotation marks omitted).            If we find the sentence unreasonable,

we then must determine whether it is “plainly” so.                             
Id. at 657.
     A    supervised       release    revocation         sentence         is    procedurally

reasonable      if   the    district          court    considered         the     Sentencing

Guidelines’     Chapter      7    advisory         policy    statements         and   the    18

                                               2
U.S.C.     § 3553(a)      (2012)      factors     applicable         to    the    supervised

release     revocation      context,        see   18     U.S.C.         § 3583(e)         (2012);

Crudup, 461 F.3d at 439
, and provided sufficient explanation for

the sentence imposed, see United States v. Thompson, 
595 F.3d 544
, 547 (4th Cir. 2010).                 While a district court must explain

its sentence, the court “need not be as detailed or specific

when imposing a revocation sentence as it must be when imposing

a post-conviction sentence.”                  
Thompson, 595 F.3d at 547
.                       A

revocation sentence is substantively reasonable if the district

court stated a proper basis for concluding the defendant should

receive     the    sentence       imposed,       up    to     the    statutory        maximum.

Crudup, 461 F.3d at 440
.

      On    appeal,        Nunez      asserts         that     the      district          court’s

explanation       for    the     sentence     was      inadequate         to   support       the

upward variance sentence it imposed.                         He also argues that the

circumstances       of    the     release    violations           and    Nunez’s      criminal

history were an inadequate basis for imposing an upward variance

sentence that was run consecutively to the state and federal

sentences     imposed           for   the    crimes          underlying        his        release

violations.

      We    find        these     arguments       unpersuasive.                The        court’s

statements        clearly       express     concern         for     Nunez’s      pattern       of

criminal behavior, his failure to be deterred by prior sentences

and   removal      proceedings,        and    the       likelihood        that       he    would

                                             3
reoffend.     The court did not abuse its discretion in imposing an

upward variance sentence on this basis.              Moreover, while Nunez

challenges the reasonableness of the court’s decision to run his

sentence consecutively to his other sentences, we conclude that

this decision is reasonable.           See USSG § 7B1.3(f), p.s.; United

States v. Johnson, 
640 F.3d 195
, 208 (6th Cir. 2011).

     Accordingly, we affirm the district court’s judgment.                  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




                                       4

Source:  CourtListener

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