UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS CRUZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones,
District Judge. (2:11-cr-00006-JPJ-PMS-1)
Submitted: July 26, 2012 Decided: August 9, 2012
Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Debbie H. Stevens, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Luis Cruz pled
guilty to possessing prohibited objects (weapons) while in a
federal prison, in violation of 18 U.S.C. § 1791(a)(2),
(d)(1)(B) (2006). The district court, without a motion by the
Government, elected to vary upward from Cruz’s advisory
Guidelines range of twenty-seven to thirty-three months’
imprisonment and impose a forty-eight-month term of
imprisonment, to be served consecutive to Cruz’s original
federal sentence. The district court also imposed a three-year
term of supervised release.
Counsel for Cruz filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
nonfrivolous appellate issues, but asking that we review the
reasonableness of Cruz’s sentence. Cruz filed a pro se
supplemental brief in which he too challenges the reasonableness
of the variant sentence and asserts that his conviction is
invalid. For the reasons that follow, we reject these
contentions and affirm the district court’s judgment.
Turning first to Cruz’s sentence, our standard of
review is familiar: we review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). When a district court imposes a
sentence that falls outside of the applicable Guidelines range,
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“we consider whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez–Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). In conducting this review, we “must give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. Thus, even if this court
could have reasonably selected a different sentence from that
which the district court selected, “this fact alone is
‘insufficient to justify reversal of the district court.’”
United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007)
(quoting Gall, 552 U.S. at 51).
We conclude that Cruz’s sentence is procedurally and
substantively reasonable. The court properly calculated Cruz’s
advisory Guidelines range and considered the parties’ arguments
in favor of a twenty-seven-month sentence. Our review of the
record persuades us that the district court’s analysis of the 18
U.S.C. § 3553(a) (2006) sentencing factors as they applied to
Cruz’s case is adequate to support the upward variant sentence
ultimately imposed. * We therefore hold that the variant sentence
*
Specifically, the court opined that Cruz’s history of
narcotics offenses and violent crimes, which reflected his
chronic recidivism, as well as the need to promote respect for
(Continued)
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is both procedurally and substantively reasonable. See United
States v. Hill, __ F.3d __, 2012 WL 2899395, at *7-*8 (4th Cir.
July 17, 2012) (No. 11-4556) (holding upward variant sentence
that was sixty months’ greater than the defendant’s Guidelines
range was both procedurally and substantively reasonable because
the sentencing court’s “reasoned and reasonable decision that
the § 3553(a) factors, on the whole, justified the sentence” was
entitled to deference (internal quotation marks omitted)); see
also United States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th
Cir.) (holding an upward variant sentence that was six years
longer than the Guidelines range was substantively reasonable
because the district court expressly relied on several of the
§ 3553(a) factors to support the variance), cert. denied, 131 S.
Ct 2946 (2011).
We next consider Cruz’s arguments pertaining to the
validity of his conviction. Cruz asserts that he would not have
pled guilty had he been properly informed (1) of the district
court’s authority to impose a sentence in excess of the advisory
Guidelines range or (2) that he would not be permitted to
the law, provide deterrence, and protect the community from any
future crime by Cruz, countenanced a sentence above the
Guidelines range. The gravity of the offense also justified a
longer sentence, the court explained, because both prison
inmates and guards are frequently injured by the type of
homemade weapons Cruz possessed.
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withdraw his guilty plea in the event that the court rejected
the Government’s sentencing recommendation. Cruz further
asserts that his attorney was constitutionally deficient for
failing to advise him on these matters.
These claims are entirely belied by the record. The
transcript of Cruz’s Fed. R. Crim. P. 11 hearing reflects that
Cruz was indeed informed of the court’s authority to impose a
sentence in excess of the advisory Guidelines range and to
reject the Government’s recommendation as to the appropriate
sentence, and that he would not be permitted to withdraw his
guilty plea if the court so exercised its sentencing discretion.
We therefore reject these arguments to undermine the validity of
Cruz’s conviction and the ineffective assistance claim
predicated on the same allegations. Lastly, because this is an
Anders appeal, we have independently reviewed the plea colloquy
conducted in this case and discern no prejudicial infirmity in
that proceeding. Accordingly, we readily affirm Cruz’s
conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This court requires that counsel inform Cruz, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Cruz requests that a petition be filed, but
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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 of the
motion was served on Cruz. 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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