United States v. Dibbi

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4829

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JULIO SPIRO DIBBI,

Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00233-NCT-1)

Submitted: January 31, 2011 Decided: February 24, 2011

Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

William E. West, Jr., Winston-Salem, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Frank J.
Chut, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Julio Spiro Dibbi pled guilty to aiding and abetting

the filing of false tax returns, 26 U.S.C. § 7206(2) (2006)

(Count One), and interfering with Internal Revenue Service (IRS)

laws, 26 U.S.C. § 7212(a) (2006) (Count Two), and was sentenced

at the bottom of his advisory guideline range to a term of

thirty months imprisonment. Dibbi appeals his sentence,

contending that the district court erred by denying his request

for either a departure or variance sentence below the guideline

range based on his poor health and advanced age. We affirm.

A district court’s refusal to depart below the

applicable guidelines range does not provide a basis for appeal

under 18 U.S.C. § 3742(a) (2006), “unless the court failed to

understand its authority to do so.” United States v. Brewer,

520 F.3d 367, 371 (4th Cir. 2008); see United States v. Allen,

491 F.3d 178, 193 (4th Cir. 2007) (declining to disturb the

district court’s post-United States v. Booker, 543 U.S. 220

(2005), sentence where the court understood its ability to

depart below the guidelines but declined to exercise such

authority).

Dibbi contends on appeal that the district court

believed it lacked the authority to depart. However, his

argument simply mischaracterizes the court’s finding that

Dibbi’s health and age did not warrant a departure. The record

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reveals no confusion on the court’s part about its authority to

depart if circumstances warranted.

With respect to the court’s decision not to vary

downward, we review a sentence, “whether inside, just outside,

or significantly outside the Guidelines range,” under a

“deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007). In conducting this review, we

first ensure “that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2006]

factors, selecting a sentence based on clearly erroneous facts,

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

51. “When rendering a sentence, the district court must make an

individualized assessment based on the facts presented,”

applying the “relevant § 3553(a) factors to the specific

circumstances of the case before it.” United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted). The court must also “state in open court the

particular reasons supporting its chosen sentence” and “set

forth enough to satisfy” us that it has “considered the parties’

arguments and has a reasoned basis for exercising [its] own

legal decisionmaking authority.” Id. (internal quotation marks

omitted).

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If the sentence is free from procedural error, we then

review it for substantive reasonableness. Gall, 552 U.S. at 51.

“Substantive reasonableness review entails taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’” United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51). Even if we would have imposed a different sentence, “this

fact alone is ‘insufficient to justify reversal of the district

court.’” Id. at 474 (quoting Gall, 552 U.S. at 51).

Dibbi does not claim that the district court erred in

calculating his guideline range. This court presumes that a

sentence imposed within the properly calculated guidelines range

is reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)

(upholding appellate presumption of reasonableness for within-

guidelines sentence). We conclude that Dibbi has failed to

overcome the presumption of reasonableness for his within-

guidelines sentence. In rejecting counsel’s request for a

downward variance, the court considered the § 3553(a) sentencing

factors and determined that they were best served by the

imposition of a within-guidelines sentence. The court

emphasized that a variance was not warranted based on Dibbi’s

health and age, particularly in light of the seriousness of the

offense and the fact that Dibbi continued his criminal conduct

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over a period of years and tried to cover his crimes by

convincing others to lie to the IRS.

Dibbi also claims that the district court failed to

exercise its discretion to vary below the guideline range

because it improperly considered his status as a naturalized

citizen. While national origin, along with race, sex, religion

and socio-economic status are not relevant to sentencing, see

U.S. Sentencing Guidelines Manual § 5H.10 (2009), the district

court did not focus on any of these factors. The court did

comment on Dibbi’s immigrant background and his seeming

ingratitude in breaking the laws of a country that had “treated

[him] well.” The court made the comments while considering

whether Dibbi’s conduct warranted a sentence above the guideline

range, rather than as a reason for refusing to vary below the

range. We conclude that the court’s comments did not render the

sentence unreasonable.

We therefore affirm the sentence imposed by the

district court. 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