United States v. Mendoza-Mendoza

Court Case Details
Court Case Opinion




No. 10-4556


Plaintiff - Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:08-cr-00032-BR-1)

Submitted: January 28, 2011

Decided: February 18, 2011

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Sebastian Kielmanovich, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.


In July 2008, Dario Mendoza-Mendoza pled guilty to

illegally reentering the United States after being removed, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2006). Mendoza-Mendoza

was sentenced to forty-six months’ imprisonment. On appeal,

this court vacated his sentence and remanded the case to the

district court for resentencing. See United States v. Mendoza-

Mendoza, 597 F.3d 212 (4th Cir. 2010).

At resentencing, the district court restated Mendoza-

Mendoza’s Guidelines calculations: his total offense level of

twenty-one, combined with a criminal history category III,

yielded an advisory sentencing range of forty-six to fifty-seven

months’ imprisonment. Although Mendoza-Mendoza’s base offense

level was eight, it was increased sixteen levels because of his

prior North Carolina convictions for taking indecent liberties

with a child, which qualified as a crime of violence. See U.S.

Sentencing Guidelines Manual (“USSG”) § 2L1.2(a), (b)(1)(A)

(2007). After analyzing the 18 U.S.C. § 3553(a) (2006)

sentencing factors and considering Mendoza-Mendoza’s arguments

for a below-Guidelines sentence, the district court again

sentenced Mendoza-Mendoza to forty-six months’ imprisonment.

This appeal timely followed.

On appeal, Mendoza-Mendoza challenges


reasonableness of his sentence. With regard to the procedural


reasonableness component, Mendoza-Mendoza argues the district

court failed to properly consider the unique mitigating

circumstances involved in this case in conducting its analysis

of the § 3553(a) sentencing factors. As to the substantive

reasonableness issue,

Mendoza-Mendoza first argues USSG

§ 2L1.2(b)(1)(A) is not entitled to deference because it was

enacted without deliberation or empirical justification, and

results in a sentence greater than necessary. Mendoza-Mendoza

next contends the forty-six-month sentence over-punishes his

offense conduct. For the reasons that follow, we reject these

contentions and affirm.

This court reviews a sentence for reasonableness,

applying an abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007); see also United States v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence. Gall, 552 U.S. at 51.

In determining procedural reasonableness, we consider

whether the district court properly calculated the defendant’s

advisory Guidelines range, considered the § 3553(a) factors,

analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence. Id. “Regardless

of whether the district court imposes an above, below, or

within-Guidelines sentence, it must place on the record an


individualized assessment based on the particular facts of the

case before it.” United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009) (internal quotation marks omitted). If the

court finds “no significant procedural error,” it next assesses

the substantive reasonableness of the sentence, taking “‘into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.’” United States v.

Morace, 594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S.

at 51), cert. denied, 131 S. Ct. 307 (2010).

In his sole argument pertaining to the procedural


reasonableness of his sentence,

Mendoza-Mendoza argues the

district court erred in its analysis of the § 3553(a) sentencing

factors. Specifically, Mendoza-Mendoza asserts the district

court should have afforded more mitigatory weight to the fact

that he has maintained a long-term relationship with the victim

of his prior criminal conduct, Heather Rowe.

The record establishes that the district court

considered the relationship between Mendoza-Mendoza and Rowe in

rendering its sentencing decision, but ultimately determined it

was an insufficient basis for sentencing Mendoza-Mendoza below

his properly calculated Guidelines range. At its core, Mendoza-


Mendoza-Mendoza does not contest the calculation of his

advisory Guidelines range.


Mendoza’s argument asks this court to substitute its judgment

for that of the district court. This we will not do.

Accordingly, we hold Mendoza-Mendoza’s sentence is procedurally


We next consider the substantive reasonableness of the

imposed sentence. In conducting substantive reasonableness

review, this court must “take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range. If the sentence is within the Guidelines

range, the appellate court may, but is not required to, apply a

presumption of reasonableness.” Gall, 552 U.S. at 51; see also

United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009).

Mendoza-Mendoza first contends this court should not

afford a presumption of reasonableness to the within-Guidelines

sentence he received, because the sixteen-level enhancement

authorized by USSG § 2L1.2(b)(1)(A) is an arbitrary guideline,

enacted without deliberation or empirical justification, that

should not be afforded deference. This argument amounts to a

policy attack on the applicable enhancement provision, and we


conclude it is without merit.

Accord United States v.


This court has previously rejected this very argument in

several unpublished, non-binding decisions. See United States
v. Ibarra-Zelaya, 278 F. App’x 290, 290-91 (4th Cir. 2008)
(holding presumption of reasonableness not overcome simply
because district court failed to reject policy of guideline);



Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.) (explaining

that, although “district courts certainly may disagree with the

Guidelines for policy reasons and may adjust a sentence

accordingly[,] . . . if they do not, we will not second-guess

their decisions under a more lenient standard simply because the

particular Guideline is not empirically-based”), cert. denied,

130 S. Ct. 192 (2009).

Finally, Mendoza-Mendoza argues the forty-six-month

sentence over-punishes his conduct — his third illegal entry

into the United States — and thus is substantively unreasonable.

Mendoza-Mendoza’s argument asks this court to overlook the fact

that his sentencing range was impacted, primarily, by his status

of having been removed following a conviction for a crime of

violence, and instead to view his offense conduct in isolation.

We decline this request. Further, we hold that Mendoza-

Mendoza’s arguments do not overcome the presumption of

reasonableness afforded his within-Guidelines sentence.

For the foregoing reasons, we affirm the district

court’s amended criminal judgment. We dispense with oral

argument because the facts and legal contentions are adequately

see also United States v. Palacios-Herrera, No. 10-4138, 2010 WL
4950000 (4th Cir. Dec. 3, 2010) (same); United States v.
Jimenez-Hernandez, 311 F. App’x 578, 579 (4th Cir. 2008) (same),
cert. denied, 129 S. Ct. 1598 (2009).


presented in the materials before the court and argument would

not aid the decisional process.



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