UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4642
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUCIO DELEON-RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:12-cr-00039-REP-1)
Argued: September 20, 2013 Decided: October 16, 2013
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Michael Calvin
Moore, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Alexandria Virginia, Valencia D.
Roberts, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Lucio Deleon-Ramirez (“Appellant”) pleaded
guilty to a violation of 8 U.S.C. §§ 1326(a), (b)(1) for
illegally reentering the United States after removal subsequent
to a felony conviction. At sentencing, the district court
granted the Government’s motion for an upward variance and
sentenced Appellant to 48 months imprisonment and three years of
supervised release. Appellant challenges this sentence,
asserting that the district court’s imposition of a sentence of
48 months imprisonment was unreasonable, and the district court
plainly erred in imposing a sentence of three years of
supervised release notwithstanding the United States Sentencing
Guidelines (“Guidelines”) recommendation against imposing
supervised release on a deportable alien.
We conclude the sentence of imprisonment imposed by
the district court was substantively reasonable. We further
conclude the sentence of three years of supervised release was
not plain error because imposing a term of supervised release on
a deportable alien who is likely to illegally reenter the
country is an appropriate method of deterrence. Accordingly, we
affirm.
I.
Appellant was born in Guatemala in 1977 and claims he
fled his native country for Mexico at a young age due to civil
2
war. He also claims he suffered sexual abuse in both Guatemala
and Mexico. Appellant lived in Mexico until sometime in 1995,
when he first illegally entered the United States. Since
illegally entering the United States, Appellant has developed a
long pattern and practice of illegally reentering the country
after deportation.
On June 17, 2001, Appellant was arrested by the United
States Boarder Patrol and charged with an “inadmissible at
entry” misdemeanor in the United States District Court for the
Southern District of Texas. Appellant pleaded guilty and
received a 90-day suspended sentence; he was then removed to
Mexico on June 18, 2001.
On June 22, 2001, Appellant was again encountered by
the United States Border Patrol in Texas and voluntarily
returned to Mexico. Appellant was not prosecuted for this
conduct and was only in Mexico a short time before once again
illegally returning to the United States.
On February 13, 2004, Appellant was encountered by
Immigration and Customs Enforcement (“ICE”) Agents in Colorado
following a traffic stop. An immigration judge in Colorado
ordered Appellant removed to Mexico on February 25, 2004.
Again, Appellant was not prosecuted for this conduct and was in
Mexico only a few days before yet again returning to the United
States.
3
On August 3, 2007, Appellant was convicted in the
Circuit Court of Richmond, Virginia, of driving with a suspended
license and sentenced to 90 days of incarceration with 60 days
suspended.
On November 27, 2009, Appellant was arrested for
assault and battery in Richmond, Virginia. Although Appellant
was not prosecuted for the assault charge, he was charged and
convicted of illegal reentry in the United States District Court
for the Eastern District of Virginia -- notably, the same
district court as in the instant matter.
During his sentencing hearing on May 21, 2010,
Appellant stated to the district court, “I want to be deported
as soon as possible. I want to take my family with me and never
come back to this country. I want to say I am sorry for coming
to this country.” J.A. 111. 1 The district court sentenced
Appellant to seven months imprisonment and one year of
supervised release. In doing so, the district court stated,
Mr. Deleon-Ramirez, if you ever come
back to this country again illegally you
will be caught, you will be prosecuted, your
sentence will be a very long one. You came
about that far away from having a two-year
sentence today. And if the government had
not [sic] been inclined to ask for it I
would have been inclined to give it. So,
1
Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.
4
you start off with that break. But you will
get no other break. You can’t come to this
country without complying with the
immigration laws no matter why you come.
J.A. 115. After serving his sentence, Appellant was removed to
Guatemala on October 6, 2010. Sometime thereafter, he once
again illegally returned to the United States.
On February 26, 2012, ICE Agents located Appellant in
Chesterfield County, Virginia, where he was in jail awaiting
trial on charges of driving while intoxicated. 2 Thereafter, on
March 6, 2012, a federal grand jury in the Eastern District of
Virginia indicted Appellant on one count of illegal reentry, the
instant offense. On April 25, 2012, Appellant pleaded guilty
and appeared before the district court on July 30, 2012, for
sentencing.
The Government moved for an upward variance, arguing
that the calculated Guidelines range of 10 to 16 months
imprisonment was not adequate considering the nature of the
offense, the history and characteristics of Appellant, the need
to protect the public, and the need to deter Appellant’s future
2
Appellant was convicted of misdemeanor driving while under
the influence and misdemeanor driving without a license on June
13, 2012, and was sentenced to a total of 12 months
incarceration with ten months suspended, and three years of
probation.
5
criminal conduct. The Government recommended a sentence of 60
months imprisonment and one year of supervised release.
In response, Appellant argued that the district court
should consider Appellant’s past history of alleged sexual abuse
and the conditions in Guatemala when deciding an appropriate
sentence. Appellant suggested a within-Guidelines sentence of
14 months imprisonment as adequate deterrence. Just as he had
done when he was sentenced for illegal reentry in 2010,
Appellant once again told the district court that he was sorry
and that he was going to take his children, leave this country
and not return. Specifically, Appellant opined:
I just want to say that I did come back
into your country. I did the wrong thing
coming back illegally, but I’m pretty sorry.
I have my two kids here, but now I’m going
to take back my kids to my country. And I
will stay back there. If there is any way I
can come back -- I will come back, but
legally with the permission or visa.
Now I understand your law. The last
two years in 2010 I didn’t understand. I
know if you come back you’re going to get
this, okay. Now I came back and I got --
I’m here again, but the jail, it’s not for
me. So I understand now that I don’t have
to come back.
J.A. 95–96.
Given that Appellant had illegally entered or
reentered the United States on multiple occasions, the district
court agreed with the Government that an upward variance was
warranted and varied Appellant’s sentence upward to 48 months
6
imprisonment, to be followed by a three-year term of supervised
release. At no time during the sentencing hearing or in any
filings before the district court did Appellant object to the
imposition of a term of supervised release.
On appeal, Appellant argues his sentence of 48 months
imprisonment is substantively unreasonable because (1) it over-
deters and does not adequately consider the nature of his
offense or his history and characteristics; and (2) it creates
an unwarranted sentencing disparity. Additionally, Appellant
argues the district court committed plain error by imposing a
three-year term of supervised release because he will be
deported upon his release from prison, and the Guidelines
recommend against imposing supervised release on a deportable
alien. The Government disputes Appellant’s contentions, arguing
that Appellant’s sentence is reasonable given his prior illegal
reentries, and the district court was not prohibited from
imposing a term of supervised release on Appellant.
II.
We review a sentence for reasonableness applying a
deferential abuse-of-discretion standard “[r]egardless of
whether the sentence imposed is inside or outside the Guidelines
range.” Gall v. United States, 552 U.S. 38, 51 (2007).
Appellant concedes the district court committed no procedural
error, therefore, we need only address the substantive
7
reasonableness of Appellant’s sentence. When considering the
substantive reasonableness of the sentence imposed, we “take
into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. “If the
district court decides to impose a sentence outside the
Guidelines range, it must ensure that its justification supports
the ‘degree of the variance.’” United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 50).
Appellant concedes that he did not object to the
imposition or length of a term of supervised release before the
district court. Therefore, we review the district court’s
decision to impose a term of supervised release for plain error.
See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”). It is Appellant’s burden
to demonstrate the following: “(1) there [was] an error; (2) the
error [was] plain, meaning obvious or clear under current law;
and (3) the error . . . affect[ed] substantial rights.” United
States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010) (internal
quotation marks omitted).
8
III.
A.
Substantive Reasonableness
We reject Appellant’s arguments that the district
court over-deterred or failed to adequately consider either the
nature of Appellant’s offense or his history and characteristics
and that the district court created an unwarranted sentencing
disparity. Pursuant to 18 U.S.C. § 3553(a), a sentencing court
must consider “the nature and circumstances of the offense and
the history and characteristics of the defendant,” “the need for
the sentence imposed . . . to afford adequate deterrence to
criminal conduct,” and “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. §§ 3553(a)(1),
(2)(B), (6). In considering these factors, the sentencing court
“‘must make an individualized assessment based on the facts
presented.’” United States v. Evans, 526 F.3d 155, 161 (4th
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50
(2007)).
Here, the district court considered Appellant’s
arguments about his personal history and violence in Guatemala.
Appellant urged the district court to take into consideration
the fact that he left Guatemala due to civil unrest and the
violence that he and his family faced there. The district court
9
did so, 3 but in considering Appellant’s history and
characteristics, it found more compelling Appellant’s history of
illegal reentry into the United States.
At sentencing, the district court discussed the
appropriate deterrence for Appellant. The district court
considered that neither the seven-month sentence Appellant
served for his first conviction, nor the threat of a two-year
sentence by the court at his first sentencing, deterred
Appellant from continuing to illegally reenter the United
States. In light of those considerations, the district court
determined, “[i]n fact, it would not be inappropriate to impose
a sentence approaching the statutory maximum of [ten] years in
order to [deter Appellant], but I think that would be greater
than is necessary.” J.A. 97. The district then decided on a
sentence of 48 months imprisonment. In imposing sentence, the
district court stated,
The last time he was here before this
Court he was told that he was a hairs-
breadth away from a 2-year sentence, but
that because the government had asked for a
lenient sentence of seven months this Court
agreed to that and that that was an
3
The district court stated, “[b]ut there’s no evidence that
[Appellant] was exposed to any of [the violence] or harmed by
any of it, . . . and so what you’re in essence asking me to do
is take into account the general conditions in a country that
don’t seem to have any particular pertinence to him.” J.A. 87.
10
appropriate sentence under all
circumstances.
What is clear now beyond question is
that the defendant has no respect for the
laws of the United States. That even the
threat of a 2-year sentence certainly will
not deter him. It is necessary to impose a
sentence of sufficient length to deter him
from ever returning to this country again
illegally, and to serve as an example to
those who would take advantage of the
leniency afforded in the federal courts to
those who illegally enter and then
immediately, or very closely thereafter,
come back to the United States illegally.
I find that it is necessary to impose
an extremely lengthy period of confinement
in order to protect the people of this
country, to promote respect for the law, and
to deter the defendant in view of his
repeated violations of the law.
J.A. 96–97.
Based on the record before us, it is clear that
contrary to Appellant’s assertions, the district court did
conduct a thorough, individualized assessment of the nature and
circumstances of the offense and the history and characteristics
of Appellant in light of the § 3553(a) factors. Furthermore, it
was not an abuse of discretion for the district court to place
significant emphasis on Appellant’s repeated illegal reentry
into the United States. See United States v. Rivera-Santana,
668 F.3d 95, 104-05 (4th Cir. 2012) (holding that upward
variance was justified based on the § 3553(a) factors where the
district court considered, inter alia, Rivera–Santana’s “dogged
defiance and lack of respect for the law, having repeatedly
11
reentered the United States illegally after being deported, and
then committing further criminal offenses”); cf. United States
v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011)
(determining district court’s above-Guidelines sentence was
reasonable under § 3553(a) where the district court considered,
inter alia, that “Savillon–Matute came back twice after being
deported” (internal quotation marks omitted)). The district
court imposed a sentence it felt was adequate to deter
Appellant, was below the recommendation of the Government, and
was well below the statutory maximum of ten years.
Accordingly, we conclude the district court did not
abuse its discretion, and Appellant’s sentence of imprisonment
was substantively reasonable.
B.
Plain Error
Finally, Appellant argues the district court committed
plain error by imposing a three-year term of supervised release
because Appellant will be deported at the end of his term of
incarceration. We disagree.
In attempt to support his position, Appellant points
to the Guidelines, arguing that a sentencing court “ordinarily
should not impose a term of supervised release in a case in
which supervised release is not required by statute and the
defendant is a deportable alien who likely will be deported
12
after imprisonment.” U.S.S.G. § 5D1.1(c) (2011). Appellant
should read further, however. Appellant’s argument ignores the
Guidelines’ illumination on this point:
In a case in which the defendant is a
deportable alien specified in subsection (c)
and supervised release is not required by
statute, the court ordinarily should not
impose a term of supervised release. Unless
such a defendant legally returns to the
United States, supervised release is
unnecessary. If such a defendant illegally
returns to the United States, the need to
afford adequate deterrence and protect the
public ordinarily is adequately served by a
new prosecution. The court should, however,
consider imposing a term of supervised
release on such a defendant if the court
determines it would provide an added measure
of deterrence and protection based on the
facts and circumstances of a particular
case.
Id. at cmt. application n.5 (emphasis supplied).
It is clear, therefore, that the imposition of a term
of supervised release on Appellant, a deportable alien, was not
plain error. The district court was permitted to impose such a
sentence based on the facts and circumstances of this particular
case, which is precisely what it did. Under the circumstances,
it was not plain error for the district court to determine that
the imposition of a term of supervised release was a necessary
measure of deterrence in light of Appellant’s repeated illegal
reentries into the country after having been warned about such
conduct.
13
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
14