UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4536
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEX PINEDA-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00517-REP-1)
Submitted: April 8, 2010 Decided: July 1, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, S. David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alex Pineda-Mendez pled guilty to illegal reentry
after previously being deported following a conviction for an
aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2006). The court
varied upward from the guideline range and imposed a sentence of
seventy-two months imprisonment. Pineda-Mendez appeals his
sentence, contending that it is procedurally unreasonable
because the district court (1) failed to explain the extent of
the variance; (2) imposed a sentence greater than necessary to
promote deterrence; (3) reached an unsupported conclusion that
he was a drug dealer; and (4) failed to avoid unwarranted
sentencing disparity. Although the government suggests that we
should review the issue for plain error, Pineda-Mendez properly
preserved the issue by arguing at sentencing for a within-
guideline sentence. United States v. Lynn, 592 F.3d 572, 577-78
(4th Cir. 2010). For the reasons explained below, we affirm the
sentence.
The government requested a variance from the advisory
guideline range of 37-46 months to ninety months based on
Pineda-Mendez’ repeated illegal entries, his failure to comply
with court orders relating to prior criminal convictions, the
danger he presented to the public, and his failure to be
deterred by previous sentences. Pineda-Mendez argued that a
sentence above the guideline range would be greater than
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necessary. He asserted that he returned after his last
deportation only because his father had suffered traumatic brain
damage from an illness and he needed to earn money to pay the
medical expenses. At the sentencing hearing, defense counsel
presented some documentation concerning Pineda-Mendez’ father’s
condition and argued that Pineda-Mendez had not fulfilled the
terms of prior probationary sentences because he had been
deported or was in custody, rather than because of disregard for
the court’s orders. Defense counsel also pointed out that
Pineda-Mendez had served almost all of his prior two-year
sentence for illegal reentry, rather than one year as the
government had argued.
Before imposing sentence, the district court observed
that Pineda-Mendez had entered the country illegally several
times and had received the maximum federal sentence for his
prior illegal reentry, as well as lenient treatment in the state
courts for other offenses. The court noted that Pineda-Mendez
showed “a pattern of entering, drug dealing, and re-entry and
drug dealing” in the past. The court noted that Pineda-Mendez
claimed that he did not use cocaine, but had recently been
convicted of possessing cocaine, from which the court inferred
that Pineda-Mendez possessed the cocaine with the intention of
selling it.
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The court stated that the sentence must be one that
promoted respect for law, deterred Pineda-Mendez from violating
the immigration laws, and protected the public from his criminal
conduct. The court decided that a sentence within the guideline
range would not be adequate to achieve the goals of the
sentencing statute. The court then stated
I believe that the sentence to be imposed here serves
the purpose of providing a sentence that is sufficient
but not greater than necessary to provide deterrence,
to provide punishment, to promote respect for the law,
and to protect the public from the defendant’s . . .
propensity to commit illegal activities, and pursuant
to 18 U.S.C. Section 3553(a) and having considered the
guidelines only as advisory and having determined that
a variance is appropriate, it is the judgment of the
Court that the defendant, Alex Pineda-Mendez, is
hereby committed to the custody of the United States
Bureau of Prisons . . . for a term of 72 months.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see also Lynn, 592 F.3d at 575. After determining whether the
district court properly calculated the defendant’s advisory
guideline range, this court must decide whether the district
court considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Id.; see United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (holding that, while the
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“individualized assessment need not be elaborate or lengthy,
. . . it must provide a rationale tailored to the particular
case . . . and [be] adequate to permit meaningful appellate
review”). Properly preserved claims of procedural error are
subject to harmless error review. Lynn, 592 F.3d at 576. If
the sentence is free of significant procedural error, the
appellate court reviews the substantive reasonableness of the
sentence. Id. at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
Here, the court properly calculated the guideline
range and considered the § 3553(a) factors, focusing
particularly on the nature and circumstances of the offense,
Pineda-Mendez’ history and characteristics, the need for the
sentence to promote respect for the law, afford adequate
deterrence to Pineda-Mendez, and protect the public from his
criminal activity. The court responded to the arguments of the
parties, for and against a variance sentence, implicitly
rejecting Pineda-Mendez’ contention that he returned to the
United States only to earn money to pay for his father’s medical
expenses. The court explained that it believed an upward
variance was necessary because Pineda-Mendez had not been
deterred by prior sentences.
We conclude that the district court’s finding that
Pineda-Mendez had regularly engaged in drug dealing when he was
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in the United States was supported by the record. In addition,
the district court “consider[ed] the extent of the deviation and
ensure[d] that the justification [was] sufficiently compelling
to support the degree of the variance.” Lynn, 592 F.3d at 582.
The court did not explain why it chose a sentence of seventy-two
months, but it did explain that a sentence within the guidelines
would not “promote respect for the law, . . . keep[] the
defendant from violating the immigration law . . . [or]
protect[] the people of this country from the crimes that he
commits when he’s here illegally.” Thus after “considering
th[e] defendant’s history and the record that he ha[d]
assembled,” the court determined that a sentence of seventy-two
months would be “sufficient but not greater than necessary to
satisfy the objectives of the sentencing statute.” This
deliberation is sufficient to satisfy Lynn.
Even assuming that the court’s explanation was
insufficient, any error here was harmless under Lynn. Under
harmless error review, the government may avoid reversal if the
error “did not have a substantial and injurious effect or
influence on the” result and “we can[] say with . . . fair
assurance, . . . that the district court’s explicit
consideration of [the defendant’s] arguments would not have
affected the sentence imposed.” 592 F.3d at 585 (internal
citations and quotation marks omitted). In Lynn, we determined
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that the government failed to prove harmlessness because,
“[g]iven the strength of Lynn’s arguments for a different
sentence, we [could not] say with any fair assurance that the
district court’s explicit consideration of those arguments would
not have affected the sentence imposed.” Id.
By contrast, the evidence suggesting harmless error in
the present case is significantly stronger than it was in Lynn
for two reasons. First, even assuming that the district court
committed procedural error in failing to explain its rejection
of Pineda-Mendez’s argument for a within-guideline sentence, the
record in this case leaves no doubt that the district court
considered his argument in the context of applying the § 3553(a)
factors. The court listened to the parties’ statements and
arguments, and thereafter stated that it had arrived at the
seventy-two-month sentence by considering all of the § 3553(a)
factors, emphasizing the need for deterrence. Second, unlike
the sentencing arguments presented by the defendant in Lynn, the
arguments that Pineda-Mendez made for a within-guideline
sentence were very weak. He had entered the country illegally
several times, and his record showed a “pattern of entering,
drug dealing, and re-entry and drug dealing.” Moreover, his
argument for a within-guideline sentence amounted to a claim
that, if his record was severe, it was only because he needed to
enter this country to provide for his family in Honduras. But
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certainly that state of affairs is not atypical for a defendant,
and Pineda-Mendez produced no evidence that his circumstances
excused repeated instances of illegal immigration and drug-
dealing, so as to require a within-guideline sentence.
Consequently, we conclude that any error here was harmless.
We therefore affirm the sentence imposed by the
district court. 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
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