United States v. Jose Zambrano

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

2
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.”

3
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

4
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

5
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

6
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

7
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

8