UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4759
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SIVIANNY JULIAN ARCE-CAMPOS, a/k/a Sivianny Arce,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:13-cr-00112-GRA-1)
Submitted: March 28, 2014 Decided: May 7, 2014
Before KING, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Max B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sivianny Arce-Campos appeals his conviction and
thirty-four-month sentence imposed following his guilty plea to
false use of a social security number (Count One), in violation
of 42 U.S.C. § 408(a)(7)(B) (2006), and aggravated identity
theft (Count Three), in violation of 18 U.S.C. § 1028A(a)(1)
(2012). On appeal, Arce-Campos’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for review but questioning
whether the district court committed procedural sentencing error
by failing to provide an adequate explanation for the sentence
imposed. Arce-Campos was notified of his right to file a pro se
supplemental brief but has not done so. For the reasons that
follow, we affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We “must first ensure that the
district court committed no significant procedural error,”
including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors, and inadequate explanation of the sentence imposed.
Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010). In assessing Guidelines calculations, we
review factual findings for clear error, legal conclusions de
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novo, and unpreserved arguments for plain error. United
States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). To
establish plain error, Arce-Campos must demonstrate that (1) the
district court erred, (2) the error was plain, and (3) the error
affected his substantial rights. Henderson v. United States,
133 S. Ct. 1121, 1126 (2013). Even if these requirements are
met, we will “correct the error only if it seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Nicholson, 676 F.3d 376, 381
(4th Cir. 2012) (internal quotation marks omitted).
The Guidelines provide for a two-level upward
adjustment to the base offense level applicable to a fraud
offense involving ten or more victims. U.S. Sentencing
Guidelines Manual (“USSG”) § 2B1.1(b)(2)(A) (2012). We sought
supplemental briefing to address whether the presentence report
(“PSR”) failed to provide adequate facts to support a finding
that Arce-Campos’ offense involved ten or more victims and, if
so, whether the district court plainly erred in imposing an
enhancement under USSG § 2B1.1(b)(2)(A). After reviewing these
supplemental briefs, we conclude any error in imposing this
enhancement is not reversible. Arce-Campos concedes as much,
and suggests a strategic reason for declining to challenge the
enhancement. Given this concession, and absent further evidence
in the record to undermine the enhancement’s factual basis, we
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are unable to conclude that the district court plainly erred in
imposing the enhancement. See Henderson, 133 S. Ct. at 1126;
Nicholson, 676 F.3d at 381.
Arce-Campos questions whether the district court
adequately explained the basis for its chosen sentence. In
explaining a sentence, the district court must conduct an
“individualized assessment justifying the sentence imposed and
rejection of arguments for a higher or lower sentence based on
§ 3553.” Lynn, 592 F.3d at 584 (internal quotation marks
omitted). The court is not required to “robotically tick
through § 3553(a)’s every subsection, particularly when imposing
a within-Guidelines sentence.” United States v. Powell, 650
F.3d 388, 395 (4th Cir. 2011) (internal quotation marks
omitted). Rather, it need only provide “some indication” that
it considered the § 3553(a) factors as they apply to the
defendant and any nonfrivolous arguments raised by the parties.
United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006).
We find no error in the district court’s explanation.
The court specifically indicated its consideration of the
§ 3553(a) factors on the record, justifying its sentence based
on the need for deterrence, just punishment, and protection of
the public. Although the court did not expressly address
Arce-Campos’ arguments for a downward variance on Count One, the
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record demonstrates that the court considered his arguments, as
it denied his request for voluntary surrender. We conclude the
court’s explanation was sufficiently detailed to provide an
individualized assessment and to justify the sentence imposed.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Arce-Campos’ conviction and sentence. This
court requires that counsel inform Arce-Campos, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Arce-Campos 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 Arce-Campos.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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