United States v. Jose Miranda-Martinez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4485

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOSE JESUS MIRANDA-MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00385-CCE-1)

Submitted: January 18, 2013 Decided: January 24, 2013

Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Anne R. Littlejohn, LAW OFFICE OF ANNE R. LITTLEJOHN,
Greensboro, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Joanna G. McFadden, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jose Jesus Miranda-Martinez (“Miranda”) pled guilty to

illegally reentering the United States after having been removed

following conviction for a felony, in violation of 8 U.S.C.

§ 1326(a), (b)(1) (2006). The district court sentenced Miranda

to thirty-nine months’ imprisonment, a sentence resulting from

the court granting an upward departure under U.S. Sentencing

Guidelines Manual (“USSG”) § 4A1.3(a), p.s. (2011), from his

advisory Guidelines range of thirty to thirty-seven months’

imprisonment. On appeal, Miranda challenges this sentence,

arguing that the district court abused its discretion in

imposing it. We affirm.

As we have explained, “no matter what provides the

basis for a deviation from the Guidelines range[,] we review the

resulting sentence only for reasonableness.” United States v.

Evans, 526 F.3d 155, 164 (4th Cir. 2008). In doing so, we apply

an abuse-of-discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). In assessing a sentencing court’s

decision to depart from a defendant’s Guidelines range, 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). We will find a sentence to be unreasonable

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if the sentencing court “provides an inadequate statement of

reasons or relies on improper factors in imposing a sentence

outside the properly calculated advisory sentencing range.” Id.

Miranda argues that the district court erred in

imposing the upward departure because there is nothing “unusual”

in his criminal history warranting imposition of the departure

and because the court erroneously considered his prior arrest

record, in violation of USSG § 4A1.3(a)(3), p.s. However,

because Miranda fails to present these arguments in accordance

with Fed. R. App. P. 28(a)(9)(A) (“[T]he [appellant’s]

argument . . . must contain . . . appellant’s contentions and

the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.”), we deem

them waived. Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d

599, 607 (4th Cir. 2009).

Next, we reject on review for plain error Miranda’s

challenge—premised on the district court’s consideration of

sentences for his prior misdemeanor convictions not assigned

criminal history points on account of the age and nature of the

convictions—to the court’s imposition of the upward departure.

The district court properly relied on the sentences Miranda

received for misdemeanor offenses for which he was assigned no

criminal history points in determining that an upward departure

was warranted. USSG § 4A1.3(a)(2)(A), p.s.

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Finally, Miranda challenges the reasonableness of the

district court’s decision to impose the thirty-nine-month

sentence. However, we conclude after review of the record that

the court’s sentencing decision is reasonable in light of

Miranda’s long history of recidivism, which reflects his

disrespect for the law, and the need for the sentence to protect

the public. The court’s consideration of relevant 18 U.S.C.

§ 3553(a) (2006) factors and articulation of its reasons for

departing from the Guidelines range support our decision to

defer to the district court’s determination as to the extent of

the departure. See United States v. Diosdado-Star, 630 F.3d

359, 366-67 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011)

(affirming substantive reasonableness of variance sentence six

years greater than the Guidelines range because it was based on

the district court’s examination of relevant § 3553(a) factors);

see also United States v. Angle, 598 F.3d 352, 359 (7th Cir.

2010) (“All that matters is that the sentence imposed be

reasonable in relation to the ‘package’ of reasons given by the

court.”).

Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED