UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4829
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JULIO SPIRO DIBBI,
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. (1:09-cr-00233-NCT-1)
Submitted: January 31, 2011 Decided: February 24, 2011
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William E. West, Jr., Winston-Salem, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Frank J.
Chut, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julio Spiro Dibbi pled guilty to aiding and abetting
the filing of false tax returns, 26 U.S.C. § 7206(2) (2006)
(Count One), and interfering with Internal Revenue Service (IRS)
laws, 26 U.S.C. § 7212(a) (2006) (Count Two), and was sentenced
at the bottom of his advisory guideline range to a term of
thirty months imprisonment. Dibbi appeals his sentence,
contending that the district court erred by denying his request
for either a departure or variance sentence below the guideline
range based on his poor health and advanced age. We affirm.
A district court’s refusal to depart below the
applicable guidelines range does not provide a basis for appeal
under 18 U.S.C. § 3742(a) (2006), “unless the court failed to
understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008); see United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007) (declining to disturb the
district court’s post-United States v. Booker, 543 U.S. 220
(2005), sentence where the court understood its ability to
depart below the guidelines but declined to exercise such
authority).
Dibbi contends on appeal that the district court
believed it lacked the authority to depart. However, his
argument simply mischaracterizes the court’s finding that
Dibbi’s health and age did not warrant a departure. The record
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reveals no confusion on the court’s part about its authority to
depart if circumstances warranted.
With respect to the court’s decision not to vary
downward, we review a sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
first ensure “that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2006]
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Id. at
51. “When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,”
applying the “relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
emphasis omitted). The court must also “state in open court the
particular reasons supporting its chosen sentence” and “set
forth enough to satisfy” us that it has “considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” Id. (internal quotation marks
omitted).
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If the sentence is free from procedural error, we then
review it for substantive reasonableness. Gall, 552 U.S. at 51.
“Substantive reasonableness review entails taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51). Even if we would have imposed a different sentence, “this
fact alone is ‘insufficient to justify reversal of the district
court.’” Id. at 474 (quoting Gall, 552 U.S. at 51).
Dibbi does not claim that the district court erred in
calculating his guideline range. This court presumes that a
sentence imposed within the properly calculated guidelines range
is reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
(upholding appellate presumption of reasonableness for within-
guidelines sentence). We conclude that Dibbi has failed to
overcome the presumption of reasonableness for his within-
guidelines sentence. In rejecting counsel’s request for a
downward variance, the court considered the § 3553(a) sentencing
factors and determined that they were best served by the
imposition of a within-guidelines sentence. The court
emphasized that a variance was not warranted based on Dibbi’s
health and age, particularly in light of the seriousness of the
offense and the fact that Dibbi continued his criminal conduct
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over a period of years and tried to cover his crimes by
convincing others to lie to the IRS.
Dibbi also claims that the district court failed to
exercise its discretion to vary below the guideline range
because it improperly considered his status as a naturalized
citizen. While national origin, along with race, sex, religion
and socio-economic status are not relevant to sentencing, see
U.S. Sentencing Guidelines Manual § 5H.10 (2009), the district
court did not focus on any of these factors. The court did
comment on Dibbi’s immigrant background and his seeming
ingratitude in breaking the laws of a country that had “treated
[him] well.” The court made the comments while considering
whether Dibbi’s conduct warranted a sentence above the guideline
range, rather than as a reason for refusing to vary below the
range. We conclude that the court’s comments did not render the
sentence unreasonable.
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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