UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOE AGUILERA AGUILA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:10-cr-00053-FL-1)
Submitted: March 30, 2011 Decided: June 28, 2011
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Noe Aguilera Aguila (“Aguila”) appeals his ten-month
sentence for violation of his term of supervised release.
Aguila argues that his revocation sentence is plainly
unreasonable because the district court failed to give an
adequate explanation for the sentence it chose. For the reasons
that follow, we affirm.
In 2009, Aguila pled guilty to possession of a firearm
by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) &
924(a)(2) (2006). He was sentenced to twelve months’
imprisonment followed by three years’ supervised release.
Aguila began his term of supervision on June 3, 2009. He also
was deported.
On August 20, 2010, a probation officer petitioned the
district court for revocation of Aguila’s term of supervised
release. The probation officer explained Aguila had, in
violation of the terms of his supervised release, engaged in
criminal conduct. Specifically, Aguila had been arrested for
misdemeanor larceny, and he also subsequently pled guilty to
illegal reentry by an aggravated felon.
Aguila did not dispute at his revocation hearing that
he had committed the acts in question, nor did he ask for a
below-policy-statement-range sentence. However, he requested a
sentence at the low end of the four- to ten-month range, asking
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the court to consider that he was already serving two years for
his illegal reentry, had once been granted temporary protected
status in the United States, had served six years in the
military of his native Honduras, and had come to the United
States to escape poverty. The Government sought a sentence at
the high end of the policy statement range, noting that in the
course of committing the possession of a firearm by an illegal
alien offense, Aguila had brandished or attempted to brandish a
firearm in the presence of a police officer. Furthermore, the
Government pointed out that Aguila was deported shortly after
serving his prison term, but that he quickly returned and
committed another crime, namely the larceny.
After hearing argument from the parties, the district
court imposed a ten-month sentence, the top of the advisory
policy statement range. The court explained that it had
considered the policy statements pertaining to revocation
sentences in Chapter Seven of the federal sentencing guidelines
and that a ten-month sentence accomplished the goals of
sentencing and reflected the guidelines policies.
Because Aguila did not request a sentence outside the
policy statement range, we review his challenge to the adequacy
of the explanation for his sentence for plain error. See United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010)
(explaining in the probation revocation context that “a
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defendant need only ask for a sentence outside the range
calculated by the court prior to sentencing in order to preserve
his claim for appellate review”); United States v. Lynn, 592
F.3d 572, 580 (4th Cir. 2010) (finding error not preserved where
defendant failed to seek sentence outside guidelines range).
“To establish plain error, [Aguila] must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Even if Aguila satisfies these
requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted) (third alteration in
original).
In the sentencing context, an error affects
substantial rights if the defendant can show that the sentence
imposed “was longer than that to which he would otherwise be
subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir.
2001) (en banc); see also United States v. Miller, 557 F.3d 910,
916 (8th Cir. 2009) (“In the sentencing context, an error was
prejudicial only if there is a reasonable probability that the
defendant would have received a lighter sentence but for the
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error.”). We conclude Aguila cannot meet this rigorous standard
on this record.
Aguila’s disregard for the law, demonstrated by his
rapid return to the United States following deportation and his
commission of yet another offense, militates against a finding
that his substantial rights were affected by any inadequacy in
the district court’s explanation of his sentence. Moreover,
Aguila fails to argue, and nothing in the record indicates, that
the court would have imposed a lighter sentence had it provided
a more thorough explanation.
Accordingly, we conclude Aguila’s challenge to his
revocation sentence cannot withstand plain error review, as he
cannot establish that any error by the district court affected
his substantial rights. We therefore affirm the district
court’s judgment. 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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