UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4369

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SIMON CRUZ-VENEZ, a/k/a Simon Cruz-Yanez, a/k/a Simon YanezCruz,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Jerome B. Friedman, District 

Judge. (2:09-cr-00161-JBF-FBS-1)

Submitted: November 30, 2010 Decided: December 6, 2010

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Richard J. 

Colgan, Assistant Federal Public Defender, Caroline S. Platt, 

Research and Writing Attorney, Norfolk, Virginia, for Appellant. 

Neil H. MacBride, United States Attorney, Katherine Lee Martin, 

Assistant United States Attorney, Norfolk, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Simon Cruz-Venez appeals the 48-month sentence imposed 

following his guilty plea to illegal reentry by an aggravated 

felon, 8 U.S.C. § 1326(a)(2) (2006). He contends that the 

sentence imposed was unreasonable. We affirm.

The court reviews Cruz-Venez’s sentence for 

reasonableness under a deferential abuse-of-discretion standard. 

See Gall v. United States, 552 U.S. 38, 41 (2007). In reviewing 

a sentence, this court must first ensure that the district court 

committed no significant procedural error, such as incorrectly 

calculating the guidelines range. United States v. Osborne, 514 

F.3d 377, 387 (4th Cir. 2008). “When rendering a sentence, the 

district court must make an individualized assessment based on 

the facts presented,” applying the “relevant [18 U.S.C.] 

§ 3553(a) [(2006)] 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” this Court 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 this court 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). 

Cruz-Venez does not dispute that his guidelines range 

was properly calculated. He argues instead that his sentence is 

substantively unreasonable because his offense level was 

enhanced by sixteen levels and his criminal history points by 

five based on his prior convictions which were over ten years 

old. However, this court has held that use of a prior 

conviction to increase the offense level and criminal history is 

permissible for the offense of reentry by an alien after a 

felony conviction. United States v. Crawford, 18 F.3d 1173, 

1174-76, 1179 (4th Cir. 1994) (holding it is not impermissible 

double counting to treat prior felony as a specific offense 

characteristic under USSG § 2L1.2(b) and to count it in 

calculating criminal history under USSG § 4A1.1, where prior 

offense accounted for six of twelve criminal history points and 
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sixteen-level enhancement); see United States v. Montes-Pineda, 

445 F.3d 375, 379 (4th Cir. 2006) (affirming sixteen-level 

enhancement where the prior felony offense was fourteen years 

prior to the unlawful reentry conviction).

We apply an appellate presumption 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 withinguidelines sentence). In rejecting Cruz-Venez’s arguments for a 

lesser sentence, the district court thoroughly considered the 

§ 3553(a) sentencing factors and determined that they were best 

served by the imposition of a within-guidelines sentence.

Furthermore, the court acknowledged its authority to impose a 

downward variance sentence, but concluded that, in light of the 

seriousness of Cruz-Venez’s prior felony offenses, his lack of 

respect for the law, the seriousness of his offense conduct of 

driving while under the influence and without a driver’s 

license, and his unlawful reentry into the United States after 

having been deported, a variance was not warranted.

Under these circumstances, we conclude that the 

district court did not abuse its discretion and that CruzVenez’s sentence is reasonable. Accordingly, we affirm CruzVenez’s sentence. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED