United States v. Asael Gomez-Jimenez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4572

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ASAEL GOMEZ-JIMENEZ, a/k/a Luis Aguilar-Sierra,

Defendant - Appellant.

No. 14-4696

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ANTHONY WAYNE WIGGINS,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:12-cr-00274-D-2; 5:12-cr-00274-D-1)

Submitted: August 20, 2015 Decided: September 29, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina; Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Asael Gomez-Jimenez appeals his 324-month sentence pursuant

to a guilty plea to possession with intent to distribute cocaine

(Count 8) and eluding examination and inspection by immigration

officers (Count 10), and a jury verdict for conspiracy to

distribute and possess with intent to distribute 5 kilograms or

more of cocaine (Count 1) and distribution of cocaine (Count 5).

His co-conspirator, Anthony Wiggins, appeals his jury

convictions and resulting life sentence for conspiracy to

distribute and possess with intent to distribute 5 kilograms or

more of cocaine (Count 1), possession with intent to distribute

28 grams or more of cocaine base (Count 6), and possession of a

firearm by a convicted felon (Count 7). On appeal, they both

challenge their respective sentences as procedurally and

substantively unreasonable. Wiggins additionally argues that

the district court erred in denying his motion to suppress.

Their appeals have been consolidated. We affirm.

We first address Wiggins’ appeal of the district court’s

denial of his motion to suppress. We review factual findings

underlying a district court’s denial of a motion to suppress for

clear error and legal conclusions de novo. United States v.

Hill, 776 F.3d 243, 247 (4th Cir. 2015). We construe the

evidence in the light most favorable to the Government, the

party prevailing below. United States v. Farrior, 535 F.3d 210,

3
217 (4th Cir. 2008). The Government bears the burden of proof

in justifying a warrantless search or seizure. United States v.

Watson, 703 F.3d 684, 689 (4th Cir. 2013).

The Fourth Amendment does not prohibit all searches and

seizures, merely those found to be unreasonable. Florida v.

Jimeno, 500 U.S. 248, 250 (1991). A warrantless search “is per

se unreasonable subject only to a few specifically established

and well-delineated exceptions,” one of which is “a search that

is conducted pursuant to consent.” Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973) (internal quotation marks, alterations

and citations omitted). Such consent may be given by the owner

of the property, or by a third-party possessing “common

authority over or other sufficient relationship to the premises

or effects” to be searched. United States v. Matlock, 415 U.S.

164, 171 (1974). Common authority is based upon the parties’

mutual use of and access to the property, such that it is

reasonable to recognize that each party “has the right to permit

the inspection in his own right and that the others have assumed

the risk that one of their number might permit the common area

to be searched.” Id. at 171 n.7. Moreover, even if the

consenting party does not have common authority over the

property sought to be searched, a search will still be upheld

where an officer reasonably believes in the existence of such

authority. See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

4
Having reviewed the record with the parties’ arguments in mind,

we conclude that the court did not err in concluding that the

officers reasonably believed that Wiggins’ girlfriend had

authority to consent to a search of the residence, even if she

lacked actual authority. Accordingly, we affirm the denial of

Wiggins’ motion to suppress.

We review the reasonableness of Wiggins’ and Gomez-

Jimenez’s sentences for abuse of discretion. United States v.

Howard, 773 F.3d 519, 527-28 (4th Cir. 2014). We first review

for procedural error, such as improper calculation of the

Guidelines range, failure to consider the 18 U.S.C. § 3553(a)

(2012) sentencing factors, selecting a sentence based on clearly

erroneous facts, or failure to adequately explain the sentence.

Howard, 773 F.3d at 528. Absent any procedural error, we

examine substantive reasonableness of the sentence under the

totality of the circumstances. Id. Sentences within or below a

properly calculated Guidelines range are presumed reasonable,

and this presumption “can only be rebutted by showing that the

sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,

306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

Because of Wiggins’ prior felony drug offenses, his

statutory mandatory minimum sentence on Count 1 was life

imprisonment. Citing Wiggins’ “long criminal history” and “lack

5
of respect for the law,” the district sentenced Wiggins to life

imprisonment on Counts 1 and 6, and 120 months on Count 7.

Relying on Alleyne v. United States, 133 S. Ct. 2151

(2013), Wiggins argues that the district court violated his

Fifth and Sixth Amendment rights by enhancing his sentence on

the basis of prior convictions that were neither alleged in the

indictment nor proven beyond a reasonable doubt. Contrary to

Wiggins’ assertions, there was no error, plain or otherwise, in

the district court’s imposition of the enhanced penalty. See

United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003)

(reviewing for plain error a constitutional claim raised for the

first time on appeal).

In Alleyne, the Supreme Court held that the Sixth Amendment

requires a jury to find beyond a reasonable doubt any facts that

increase a defendant’s mandatory minimum sentence. Alleyne, 133

S. Ct. at 2163-64. The Alleyne Court recognized, and expressly

declined to reconsider, however, a narrow exception that allows

a judge to find that a defendant’s prior conviction occurred.

Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523

U.S. 224 (1998)). “Almendarez-Torres remains good law, and

[this court] may not disregard it unless and until the Supreme

Court holds to the contrary.” United States v. McDowell, 745

F.3d 115, 124 (4th Cir. 2014), cert. denied, 135 S. Ct. 942

(2015). Accordingly, this argument is unavailing.

6
Wiggins also asserts that the district court miscalculated

his Guidelines range on Count 6. According to Wiggins, his

Guidelines range was 235 to 293 months. Because Wiggins failed

to object below, this claim too is reviewed for plain error.

See United States v. Olano, 507 U.S. 725, 731-32 (1993) (stating

standard for plain error review). Contrary to Wiggins’

assertions, the probation officer correctly grouped the three

counts for Sentencing Guidelines purposes. The resulting

Guidelines range was life imprisonment because, even though

Wiggins’ offense level and criminal history category generated a

range of 235 to 293 months, the statutory mandatory minimum

sentence on Count 1, life imprisonment, was greater than the

maximum of the applicable Guidelines range. See U.S. Sentencing

Guidelines Manual § 5G1.2(b) (2013).

Wiggins also suggests that the district court cut short his

right to allocute at sentencing. A defendant has a due process

right to address the court if he expresses a desire to do so.

Green v. United States, 365 U.S. 301, 304 (1961); Ashe v. North

Carolina, 586 F.2d 334, 336 (4th Cir. 1978); Fed. R. Crim. P.

32(i)(4)(ii) (right to allocution in federal cases). Allocution

is the right to present a statement in mitigation of sentencing.

United States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004); Fed.

R. Crim. P. 32(i)(4)(ii). However, that right is not unlimited.

Ashe, 586 F.2d at 336-37. Allocution “may be limited both as to

7
duration and as to content. [The defendant] need be given no

more than a reasonable time; he need not be heard on

irrelevancies or repetitions.” Id. at 337.

Here, Wiggins was given an opportunity to speak prior to

the imposition of his sentence. However, when it became

apparent that Wiggins wished to argue the issue of guilt or

innocence, rather than in mitigation of his sentence, the court

intervened. Even so, the court permitted Wiggins to continue

again with his allocution. Having reviewed the transcript, we

conclude that Wiggins was not denied the right to allocute.

Last, Wiggins challenges the substantive reasonableness of

his sentence, primarily arguing that a life sentence was greater

than necessary. However, a statutorily mandated sentence, which

Wiggins received, is per se reasonable. Farrior, 535 F.3d at

224. In light of the above, we affirm Wiggins’ convictions and

sentence.

Gomez-Jimenez was sentenced within his advisory Guidelines

range to 324 months’ imprisonment. Defense counsel moved for a

variant sentence of 180 months based on Gomez-Jimenez’s lack of

criminal history, his newly acquired faith in prison, advanced

age upon release, impending deportation, and family

responsibilities. The Government sought a sentence at the top

of the Guidelines range.

8
In rendering a sentence, the district court stated that it

had considered all of the parties’ arguments, the advisory

Guidelines range, and the various § 3553(a) factors. Noting

Gomez-Jimenez played a “critical role” in the organization and

that he was “committed to being a drug dealer,” the court

stressed that “specific deterrence and general deterrence are

critical here in light of the serious nature of the conduct, the

entire record, [and that Gomez-Jimenez] deserve[s] a very

serious punishment.”

Gomez-Jimenez first argues that the district court failed

to explain why it rejected his non-frivolous arguments for a

lesser sentence, thus rendering his sentence procedurally

unreasonable. The district court stated that it had considered

the arguments proffered on Gomez-Jimenez’s behalf for a lesser

sentence. The court noted, however, that Gomez-Jimenez was

involved in very serious drug offenses, and that he chose to

continue his drug activities even after his brothers pled guilty

to drug offenses. Although the court observed that Gomez-

Jimenez may have done “a little honest work,” it noted that he

“certainly spent the bulk of [his] time as a drug dealer.” The

court further stated that his possible religious conversion in

prison was not mitigating. The court also explained that it did

not find Gomez-Jimenez’s proposed downward variance to 180

months-or a sentence at the bottom of the Guidelines range-to be

9
“remotely appropriate.” We conclude that the district court

sufficiently explained why it did not find Gomez-Jimenez’s

arguments in mitigation compelling.

Gomez-Jimenez also contends that his sentence was

substantively unreasonable, arguing that his lack of criminal

history and his low risk of recidivism warranted a lesser

sentence. In a related argument, he maintains that the district

court gave too much weight to general deterrence, making his

sentence greater than necessary to punish and deter him.

The burden rests with the defendant to rebut the

presumption of reasonableness by demonstrating “that the

sentence is unreasonable when measured against the § 3553(a)

factors.” United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted). In Gomez-

Jimenez’s case, the district court thoroughly considered his

circumstances and history, and found that deterrence mandated

the chosen sentence. The court’s explanation for its chosen

sentence was thorough and well-reasoned. Simply stated, the

court implicitly found that the severity of Gomez-Jimenez’s

crimes and his critical role in the drug-trafficking

organization outweighed his lack of prior convictions.

Furthermore, Gomez-Jimenez’s assertion that he had a low risk of

recidivism was undermined by his continuing involvement in the

drug trade even after his family members received lengthy

10
sentences. Gomez-Jimenez has simply failed to rebut the

presumption of reasonableness accorded his within-Guidelines

sentence.

Accordingly, we affirm the criminal judgments. 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