Filed: Feb. 04, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4298 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNI MARTINEZ GOMEZ, a/k/a Joni Omar Martinez, a/k/a Elvis Alexis Guzman, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:14-cr-00335-JKB-1) Submitted: January 21, 2016 Decided: February 4, 2016 Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4298 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNI MARTINEZ GOMEZ, a/k/a Joni Omar Martinez, a/k/a Elvis Alexis Guzman, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:14-cr-00335-JKB-1) Submitted: January 21, 2016 Decided: February 4, 2016 Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNI MARTINEZ GOMEZ, a/k/a Joni Omar Martinez, a/k/a Elvis
Alexis Guzman,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:14-cr-00335-JKB-1)
Submitted: January 21, 2016 Decided: February 4, 2016
Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard C. Bittner, LAW OFFICE OF RICHARD C. BITTNER, Glen
Burnie, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Paul E. Budlow, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnni Martinez Gomez pled guilty, pursuant to a plea
agreement, to one count of reentry of a deported felon, in
violation of 8 U.S.C. § 1326 (2012). Gomez asserts that his
sentence should be vacated because: (1) the 16-level
enhancement to his offense level, pursuant to U.S. Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2014), violated his due
process rights; and (2) the 41-month sentence was excessive
“given the totality of [his] circumstances, conduct, prior
offense, and the vision of 18 U.S.C. § 3553 [2012].” Finding no
error, we affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States,
552 U.S. 38, 51 (2007). The
first step in this review requires us to ensure that the
district court committed no significant procedural error.
King,
673 F.3d at 283. Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
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sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . [that] it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For
instance, if “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from § 3553 “for a sentence
different than the one ultimately imposed,” the party
sufficiently “preserves its claim.”
Id. at 578. However, we
review unpreserved non-structural sentencing errors for plain
error.
Id. at 576-77.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. See United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). We presume on appeal that a sentence
within or below a properly calculated Guidelines range is
substantively reasonable. United States v. Susi,
674 F.3d 278,
289 (4th Cir. 2012).
According to Gomez, the district court violated his due
process rights when it considered his prior assault conviction
and “automatically enhance[d] [his] sentence[] when there is
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absolutely no evidence that [Gomez’s] conduct in this case was
anything more than a re-entry without permission or inspection,
and that his prior conduct was isolated.” We reject Gomez’s
argument that the district court erred when it applied the 16-
level violent offender enhancement to his base offense level.
First, Gomez agreed in his plea agreement and in open court
while under oath that he was subject to the 16-level
enhancement. Because it is undisputed that Gomez knowingly and
voluntarily entered his guilty plea, we enforce the stipulations
in Gomez’s plea agreement and reject his offense level
challenge. See United States v. Yooho Weon, 722 F.3d 583, 589-
90 (4th Cir. 2013) (holding that absent “demonstrated
exceptional circumstances[,]” a defendant who pleads guilty
pursuant to a plea agreement where the defendant agrees to
specific stipulations cannot challenge the application of those
same stipulations on appeal).
We nonetheless discern no due process violation by the
district court. Section 2L1.2(b)(1)(A)(ii) provides for a 16–
level increase if a defendant illegally reenters the United
States after being convicted of a crime of violence, and the
Guidelines commentary lists various crimes that constitute
crimes of violence, including “aggravated assault” for which
Gomez was convicted. See USSG § 2L1.2 cmt. n.1(B)(iii) (2014).
Notably, Gomez does not assert that his prior Texas aggravated
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assault conviction is not a crime of violence under
2L1.2(b)(1)(A)(ii). And as is evidenced by the fact that Gomez
cites no authority for his due process argument, his argument is
meritless. Cf. Almendarez-Torres v. United States, 523 U.S.
224, 239-44 (1998) (reiterating that the Due Process Clause
“protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged[,]” while recognizing that
“recidivism does not relate to the commission of the offense,
but goes to the punishment only”) (emphasis added and internal
quotation marks and citation omitted). Accordingly, Gomez’s 41-
month sentence is procedurally reasonable.
Having discerned no procedural error in Gomez’s sentence,
this court presumes on appeal that the sentence is reasonable.
Susi, 674 F.3d at 289. Gomez nonetheless attempts to rebut this
presumption by arguing that his sentence is greater than
necessary to achieve § 3553(a)’s objectives. According to
Gomez, the district court abused its discretion when it imposed
the 41-month sentence because: (1) Gomez is being punished
twice for the 2005 aggravated assault; (2) Gomez’s reentry was
not related to unlawful activity and Gomez committed no violent
acts upon his return; (3) Gomez returned to the United States to
work and help his son and ailing mother; and (4) Gomez does not
need a harsh sentence to understand the gravity of his actions.
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Gomez’s arguments amount to little more than his
disagreement with the district court’s rationale for his
sentence. Moreover, the district court explicitly stated that
it considered each § 3553(a) factor before it imposed Gomez’s
sentence, and it also expressly indicated the role it believed
each factor played in fashioning an appropriate sentence. The
district court clearly found it important that Gomez’s criminal
history involved a violent criminal act, and it believed that a
41–month sentence would sufficiently address the demonstrated
needs for deterrence and a respect for the law. See 18 U.S.C.
§ 3553(a)(1), (2)(A)-(B). The district court nonetheless also
took into consideration the fact that Gomez initially faced a
longer sentence under a Guidelines range that, although the
district court found was correctly calculated, it believed
overrepresented Gomez’s criminal history. Even if Gomez or this
court believed that a different sentence would be appropriate,
we must defer to the district court’s decision that the
§ 3553(a) factors, on a whole, justified the sentence imposed.
See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
Because we discern no procedural error in the district
court’s imposition of a 41-month downward variant sentence, and
because Gomez has failed to rebut the presumption of
reasonableness this court affords his below-Guidelines sentence,
we affirm the district court’s judgment. We dispense with oral
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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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