UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ZAVALA ZAMBRANO, a/k/a Josue Sanbrano, a/k/a Jamie
Mariaga-Padillas, a/k/a Jamie Padillas,
Defendant - Appellant.
No. 10-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS ZAVALA-SAMBRANO,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00236-HEH-1; 3:09-cr-00424-HEH-1)
Submitted: May 31, 2011 Decided: June 14, 2011
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sherri A. Thaxton, SHERRI A. THAXTON, P.C., Richmond, Virginia,
for Appellant. Stephen David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Jose Zavala Zambrano *
appeals from the thirty-eight-month sentence imposed upon his
guilty plea to illegally reentering the United States after
having been deported following a conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and
the revocation of his supervised release and twelve-month term
of imprisonment. Appellate counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), in each appeal.
In the illegal reentry case, counsel questions whether
the district court committed a procedural sentencing error when
it increased Zambrano’s base offense level by eight for an
aggravated felony based on his prior state conviction for
domestic assault and battery. In the revocation of supervised
release case, counsel questions whether there was sufficient
evidence to find Zambrano violated a condition of his supervised
release. Counsel concludes, however, that there are no
meritorious issues in either appeal. Zambrano filed a pro se
supplemental brief arguing that the district court committed a
procedural sentencing error in imposing the eight-level increase
for a prior aggravated felony conviction. Zambrano relies on a
*
Although the Appellant names in these appeals are spelled
differently, both names refer to the same individual, to whom we
refer as “Zambrano.”
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recently decided Supreme Court case, Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010). Finding no error we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009). In so doing, we first examine the sentence
for “significant procedural error,” including “failing to
calculate (or improperly calculating) the [Sentencing]
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.” Gall, 552
U.S. at 51. Finally, we “‘consider the substantive
reasonableness of the sentence imposed.’” United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S.
at 51). We presume on appeal that a sentence within a properly
calculated advisory Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v.
United States, 551 U.S. 338, 346-56 (2007) (upholding
presumption of reasonableness for within—Guidelines sentence).
We first conclude that Zambrano’s sentence is
procedurally reasonable. Under U.S. Sentencing Guidelines
Manual (“USSG”) § 2L1.2(b)(1)(c) (2009), the base offense level
of eight for illegal reentry is increased by eight additional
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levels for a prior “conviction for an aggravated felony.” An
aggravated felony “has the meaning given that term” in 8 U.S.C.
§ 1101(a)(43) (2006). USSG § 2L1.2 n.3(A). Under 8 U.S.C.
§ 1101(a)(43)(F) (2006), an aggravated felony is a “crime of
violence (as defined in [18 U.S.C. § 16 (2006)]) for which the
term of imprisonment [is] at least one year.” A crime of
violence is defined, as relevant here, as “an offense that has
as an element the use, attempted use, or threatened use of force
against the person or property of another.” 18 U.S.C. § 16.
In Carachuri-Rosendo, the Supreme Court held that,
when determining what constitutes an aggravated felony, the
state offense of record cannot be enhanced “ex post” by looking
at facts outside the offense of conviction to make it an
aggravated felony. Carachuri-Rosendo, 130 S. Ct. at 2586. The
Court also held that penalties for an aggravated felony
conviction only apply “when the noncitizen has actually been
convicted of an aggravated felony — not when he merely could
have been convicted of a felony but was not.” Id. (internal
quotation marks and alteration omitted). Here, Zambrano’s
assault and battery conviction was a crime of violence as
defined by 18 U.S.C. § 16, and he received a sentence of at
least one year. The court did not need to reach beyond the
facts of conviction, as was the case in Carachuri-Rosendo, to
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find that Zambrano’s conviction fit the definition of an
aggravated felony. Therefore, this claim fails.
Thus, in sentencing Zambrano for his illegal reentry
conviction, the district court properly calculated the advisory
Guidelines range, including the eight-level enhancement for
aggravated felon status, considered the § 3553(a) factors, and
explained its chosen sentence. See United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (district court must conduct
individualized assessment based on the particular facts of each
case, whether sentence is above, below, or within the Guidelines
range). Moreover, the sentence is substantively reasonable.
The court sentenced Zambrano to thirty-eight months of
imprisonment, within the advisory Guidelines range, based on
Zambrano’s extensive criminal history during the time he was
illegally present in the United States. The court also stated
that it believed that the sentence was sufficient, but no longer
than necessary, to promote respect for the law and to deter any
further illegal entries. Under these circumstances, Zambrano
cannot overcome the presumption of reasonableness accorded his
within-Guidelines sentence.
We next turn to the appeal from the revocation of
supervised release. The district court may revoke a term of
supervised release when it finds by a preponderance of the
evidence that the defendant has violated a condition of
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supervised release. 18 U.S.C. § 3583(e)(3) (2006). A condition
of Zambrano’s supervised release was that he not reenter the
United States illegally. Zambrano was charged with a supervised
release violation based on his guilty plea to the charge that he
reentered the United States illegally.
At the revocation of supervised release hearing,
Zambrano admitted the violation based on this guilty plea, and
the court revoked his supervised release. We conclude that
there was sufficient evidence to prove by a preponderance that
Zambrano violated a mandatory condition of his supervised
release.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the judgment of the district court as to the
illegal reentry conviction and sentence in No. 10-4135 and the
judgment revoking supervised release and imposing a twelve-month
sentence in No. 10-4136. Counsel has filed a motion to withdraw
from further representation. This court requires that counsel
inform Zambrano, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Zambrano requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
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Zambrano. We therefore deny the motion to withdraw at this
time.
We affirm the judgments of the district court in Nos.
10-4135 and 10-4136. 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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