Filed: Dec. 23, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4900 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CARLOS ADRIAN OLEA AVILA, a/k/a Eric Santiago Roman, a/k/a Carlos Olea Avila, 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. (1:14-cr-00136-NCT-1) Submitted: May 27, 2015 Decided: December 23, 2015 Before GREGORY, DUNCAN, and FLOYD, Circuit Judg
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4900 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CARLOS ADRIAN OLEA AVILA, a/k/a Eric Santiago Roman, a/k/a Carlos Olea Avila, 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. (1:14-cr-00136-NCT-1) Submitted: May 27, 2015 Decided: December 23, 2015 Before GREGORY, DUNCAN, and FLOYD, Circuit Judge..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4900
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS ADRIAN OLEA AVILA, a/k/a Eric Santiago Roman, a/k/a
Carlos Olea Avila,
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. (1:14-cr-00136-NCT-1)
Submitted: May 27, 2015 Decided: December 23, 2015
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Greensboro, North Carolina,
Robert A.J. Lang, Assistant United States Attorney, Alena K.
Baker, Third Year Law Student, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Adrian Olea Avila appeals the 70-month sentence the
district court imposed following his guilty plea to the charge
of illegal reentry of an aggravated felon, in violation of
8 U.S.C. §§ 1326 (a) and (b)(2). On appeal, Avila argues that
the district court imposed a procedurally unreasonable sentence
by failing to explain his sentence and by failing to conduct an
individualized assessment of the facts to support his sentence.
Because the district court failed to state the basis for the
sentence imposed, we are constrained to conclude that we can
neither uphold the sentence as procedurally reasonable nor
determine its substantive reasonableness. Accordingly, we
vacate the judgment of the district court and remand for
resentencing.
I.
A.
Avila, a native of Mexico, entered the United States on
June 15, 2001. In 2003 and 2004, he was convicted of two
felonies in California Superior Court. The first, in December
2003, was for possession of methamphetamine. The second, in
September 2004, was for vehicle theft. Following the second
conviction, on September 24, 2004, Avila was deported to Mexico.
2
Avila, however, returned to the United States. In 2009,
after he was discovered, he was convicted of illegal reentry by
an aggravated felon and sentenced to 36 months’ imprisonment.
After completing his sentence for that crime, Avila was deported
to Mexico again.
Less than three years later, Avila was discovered in the
United States again. On April 7, 2014, Avila was arrested by
the Charlotte ICE/ERO Fugitive Operations Team. A federal grand
jury subsequently indicted Avila for illegal reentry by an
aggravated felon, in violation of 8 U.S.C. §§ 1326 (a) and
(b)(2). Avila pleaded guilty under a written plea agreement.
B.
In preparing the presentence report (“PSR”), the probation
officer calculated a base-offense level of 8 under the
U.S.S.G. § 2L1.2(a) (2013), with a 16-level increase because
Avila had been previously deported following his 2003 felony
drug trafficking conviction. Applying a 3-level reduction for
acceptance of responsibility, the probation officer found
Avila’s total offense level to be 21. With a criminal history
category of V, he faced a Guidelines range of 70 to 87 months.
The probation officer recommended a sentence at the low end of
the advisory Guidelines range. Neither party objected to the
PSR.
3
The district court adopted the PSR and calculated Avila’s
Guidelines range to be 70 to 87 months. The government
requested a within-Guidelines sentence. Avila requested a
downward variance, arguing that, by both imposing the
enhancement for illegal reentry and finding a criminal history
category of V, the PSR double-counted his prior felony
conviction.
To Avila’s argument for a downward variance, the Government
responded that the three criminal history points were added for
the prior conviction and the 16-level enhancement was given
because Avila once again reentered the country illegally.
Therefore, the Government argued, there was no double-counting.
The Government stated, however, that it had no objection to a
70-month sentence.
The district court agreed with the Government on the
double-counting argument and concluded that a downward variance
was unwarranted. Although the district court also concluded
that a sentence at the low end of the Guidelines range was
appropriate, it neither explained its rationale for adopting a
within-Guidelines sentence nor explicitly mentioned the
18 U.S.C. § 3553(a) factors. The court then sentenced Avila to
70 months’ imprisonment. This appeal followed.
4
II.
In his appeal, Avila contends that his sentence is
procedurally unreasonable because (1) the district court failed
to sufficiently explain its sentencing decision, including the
application of the § 3553(a) factors, and (2) the district court
failed to conduct an individualized assessment in its sentencing
decision.
In reviewing any sentence for reasonableness, “we apply a
‘deferential abuse-of-discretion standard.’” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall v.
United States,
552 U.S. 38, 41 (2007)). Our analysis follows a
two-step approach. We first must “ensure that the district
court committed no significant procedural error.”
Gall, 552
U.S. at 51. “If, and only if, we find the sentence procedurally
reasonable,” we then proceed to “consider the substantive
reasonableness of the sentence imposed.”
Carter, 564 F.3d
at 328 (quoting
Gall, 552 U.S. at 51).
A district court commits procedural error by
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C]
§ 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately
explain the chosen sentence--including an explanation
for any deviation from the Guidelines range.
5
Gall, 552 U.S. at 51. “District courts are obligated to explain
their sentences, whether those sentences are within or beyond
the Guidelines range, although they should especially explain
sentences outside this range.” United States v. Montes-Pineda,
445 F.3d 375, 380 (4th Cir. 2006) (citation and alteration
omitted). In particular, 18 U.S.C. § 3553(c) requires a
district court to “state in open court” the specific reasons
supporting the sentence given. In doing so, “[t]he sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.”
Rita v. United States,
551 U.S. 338, 356 (2007). This not only
“allow[s] for meaningful appellate review”; it also “promote[s]
the perception of fair sentencing.”
Gall, 552 U.S. at 50.
Even if a district court imposes a within-Guidelines
sentence, “it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” Carter, 564 F.3d at 330 (quoting
Gall, 552 U.S. at 50)
(footnote omitted). “This individualized assessment need not be
elaborate or lengthy, but it must provide a rationale tailored
to the particular case at hand and adequate to permit
‘meaningful appellate review.’” Id. (quoting
Gall, 552 U.S.
at 50).
6
In Carter, we concluded that the district court failed to
“justify Carter's sentence with an individualized rationale.”
Id. at 328-29 (emphasis omitted). Despite the fact that the
district court had “offered a variety of statements” about the
parties' arguments, had explained that it was “looking at the
four purposes in Section 3553(a)(2),” and had even summarized
those purposes, we concluded that the district court failed to
sufficiently “explain how those purposes applied to Carter.”
Id. at 329. Thus, we found Carter’s sentence unreasonable
because the “district court's asserted ‘reasons’ could apply to
any sentence, regardless of the offense, the defendant's
personal background, or the defendant's criminal history.”
Id.
(emphasis omitted).
Here, the totality of the district court's statement to
Avila with respect to the sentence was as follows:
I am in agreement with Ms. Hairston’s perspective with
regard to how the counted criminal history points, as
well as the reason for the aggravated felony existing,
and will not vary downward, Mr. McCoppin, for that
reason. I am in agreement as well with the
recommendation of the guidelines for a sentence at the
low end of that advisory range, which is 70 months.
Everyone does have a right to change their life. What
happens here regardless of what it is, has nothing to
do with the person’s decision and right to change
whatever it is they do. You had the opportunity to
change any decision you would make after you were
convicted in Federal District Court in Arizona about
returning to the United States.
7
You know, I am blessed every day, we all are in this
courtroom, to have the right to be in the United
States, either by birth or through naturalization.
Often we don’t understand just how important that is.
We often take that for granted and don’t appreciate it
properly, but that doesn’t mean that I can change the
law or bend the law with regard for what it is for
people returning as you have, now more than once when
you’re not lawfully entitled to, without getting the
appropriate permission from immigration officials.
J.A. 60-61. The district court's commentary certainly manifests
its concern regarding the offense and its agreement with the
recommended Guidelines sentence. It does not, however, include
individualized reasons for adopting a within-Guidelines sentence
or an explanation of the sentence actually imposed.
The omission is compounded by the lack of an explanation of
how the § 3553(a) factors applied to the facts of Avila's case.
Although it is true that a district court need not “robotically
tick through § 3553(a)’s every subsection,” United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it must elaborate
enough on its application of the sentencing factors so as “to
allow an appellate court to effectively review the
reasonableness of the sentence,”
Montes-Pineda, 445 F.3d at 380
(citation omitted). Here, the district court did not offer any
reasons to explain how the purposes of the § 3553(a) factors
applied to Avila. Furthermore, the record is so bare that we
cannot decipher from it whether the district court considered
8
the § 3553(a) factors at all, let alone perform any meaningful
appellate review.
In sum, we cannot uphold Avila’s sentence as procedurally
reasonable because the district court did not adequately explain
the basis for the sentence imposed. Accordingly, we vacate the
judgment of the district court and remand for resentencing. 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.
III.
For the foregoing reasons, we vacate the judgment of the
district court and remand for resentencing.
VACATED AND REMANDED
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