United States v. Orlando Loza

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4966

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ORLANDO GONZALEZ LOZA,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00085-MR-DLH-1)

Submitted: July 28, 2014 Decided: August 1, 2014

Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Orlando Gonzalez Loza appeals from the fifty-seven

month sentence imposed by the district court following his

guilty plea to illegal reentry of a deported alien, in violation

of 8 U.S.C. §§ 1326(a), (b)(2) (2012). Loza’s counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

concluding there are no meritorious grounds for appeal but

questioning whether the district court committed procedural

error in calculating Loza’s criminal history score and whether

the district court abused its discretion by not giving Loza

credit for time served on his state sentence. Loza was notified

of his right to file a supplemental pro se brief but has not

done so. 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). The court “first ensur[es] that

the district court committed no significant procedural error,

such as failing to [properly] calculate . . . the Guidelines

range, . . . failing to consider the § 3553(a) factors, . . . or

failing to adequately explain the chosen sentence.” Id. at 51.

If the Court finds the sentence procedurally reasonable, it also

must examine the substantive reasonableness of the sentence,

considering “the totality of the circumstances.” Id. We apply

a presumption of reasonableness to a sentence within the

2
properly calculated Guidelines range. United States v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

First, Loza argues that the district court improperly

assessed three criminal history points for his state drug

conviction for which he was serving time when he was federally

indicted. Specifically, Loza argues that, because his state

drug trafficking offenses occurred during the commission of the

illegal reentry, they are relevant conduct under U.S. Sentencing

Guidelines Manual § 1B1.3(a)(1)(A) (USSG) (2012), and therefore

could not be assessed criminal history points pursuant to USSG

§ 4A1.2(a)(1). Prior offenses are part of the same course of

conduct if “they are sufficiently connected or related to each

other as to warrant the conclusion that they are part of a

single episode, spree, or ongoing series of offenses.” United

States v. Hodge, 354 F.3d 305, 313 (4th Cir. 2004) (quoting USSG

§ 1B1.3 cmt. n.9(B)). Factors to be considered “include the

degree of similarity of the offenses, the regularity

(repetitions) of the offenses, and the time interval between the

offenses.” Id. (quoting USSG § 1B1.3 cmt. n.9(B)). We conclude

that Loza’s state conviction for felony cocaine trafficking is

not relevant conduct as to his illegal reentry because the two

crimes are materially different and they were not part of a

common scheme or plan.

3
Loza correctly observes that illegal reentry is an

ongoing crime that begins upon entry and continues until the

alien’s discovery by authorities. See United States v.

Ruelas-Arreguin, 219 F.3d 1056, 1061 (9th Cir. 2000). However,

contrary to Loza’s argument, his commission of the state drug

crime while he was committing the illegal reentry does not make

the drug crime relevant conduct. See United States v.

Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009) (holding that

“§ 4A1.2 does not preclude the district court from assigning

criminal history points for sentences received after an illegal

entry, but before an alien is found by immigration

authorities”); United States v. Vargas-Garcia, 434 F.3d 345,

349-52 (5th Cir. 2005) (holding that the continuing nature of an

illegal reentry offense does not prevent the district court from

including other sentences in criminal history). Accordingly, we

conclude that the district court did not err in assessing Loza

three criminal history points for his state drug conviction.

Loza next argues that the district court abused its

discretion by failing to give him credit, in the form of a

downward departure or variance on his federal sentence, for time

served in state custody. Specifically, Loza argues that, had

the Government turned him over to federal court before the

expiration of his state sentence, the district court could have

imposed his sentences to run concurrently.

4
Under USSG § 5G1.3(c), in any case involving an

undischarged term of imprisonment, “the sentence for the instant

offense may be imposed to run concurrently, partially

concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant

offense.” Subsection (c) does not, however, authorize a

downward departure for the instant offense for a period of

imprisonment already served on the undischarged term of

imprisonment. See USSG § 5C1.3 (cmt. n.3(E).

We conclude that the district court did not abuse its

discretion in declining to give Loza credit for time served on

the state sentence. While it is true that, if Loza had been

sentenced for the current offense while he was incarcerated on

the state charges, the district court could have run the federal

sentence concurrent with the state sentence, any suggestion that

the court would have done so in this case is mere speculation.

In fact, the district court here made it clear that Loza did not

deserve a discount on his federal sentence for his unrelated

state sentence.

In accordance with Anders, we have reviewed the entire

record and have found no meritorious grounds for appeal. We

therefore affirm the district court’s judgment. This court

requires that counsel inform Loza, in writing, of the right to

petition the Supreme Court of the United States for further

5
review. If Loza 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 Loza.

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