2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/1544NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 11

- 2462

_____________ UNITED STATES OF AMERICA

v. FRED Y GABRIEL GUEVARA

- ZELAYA, Appellant

_______________ On Appeal f rom the United States District Court for the District of New Jersey (D.C. No. 3

- 11

- cr - 00 064

- 001 ) District Judge: Hon. Garrett E. Brown, Jr.

_______________ Submitted Under Third Circuit LAR 34.1(a) January 13, 2012 Before: McKEE, Chief Judge, FUENTE S and JORDAN, Circuit Judges

. (Filed: January 24, 2012 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Fredy Guevara

- Zelaya appeals the 77 month sentence imposed on him follow ing his guilty plea to a charge under 8 U.S.C. § 1326 of illegally reentering the country after removal . Guevara

- Zelaya claims that the District Court erred in applying a 16

- level2 sentencing enhancement pursuant to U .S.S.G. § 2L1.2, rendering his sentence substantively unreasonable. There was no erro r, and we will affirm.
I. Background Guevara

- Zelaya, a citizen of Honduras , entered the United States along with his family in 1994 . On March 12, 2004, he was convicted in New Jersey Superior Court of
p o ssessing c ocaine with intent to d istribute with in 1,000 feet of a school, in violation of
N.J. Stat. Ann. § 2C:35

- 7 , and was sentenced to four years ’ imprisonment

. Guevara

Zelaya ’s offense constituted an aggravated felon y as defined by 8 U.S.C. § 1101 (a)(43) (B) , and , pursuant to 8 U.S.C. § 1227 (a)(2)( A)(iii) , he was removed to Honduras on January 19, 2006

. Sometime after his removal , Guevara

- Zelaya illegally reentered the United States. On October 11, 2009, during a motor vehicle stop in Jersey City, New Jersey, Guevara

Zelaya was arrested on an ou tstanding warrant. Later that day, U.S. Immigration and Customs Enforcement agents found him at the Hudson County Jail in Kearny, New Jersey. As part of a plea agreement with the United States , Guevara

- Zelaya pleaded guilty to illegal ly reentering the United States after removal for an aggravated felony, in violation of 8 U.S.C. § 1326 . The presentence investigation report (“PSR”) prepared in anticipation of sentencing calculated an offense level of 21. That offense level included a ba se level of 8, a 16

- level enhancement pursuant to U.S.S.G. § 2L1.2 , and a 3

- level reduction for acceptance of responsibility. The PSR also calculated Guevara

- Zelaya’s criminal history category , noting it as category VI, based on his 17 criminal history3 points, which refl ects what he concedes is a long criminal record. 1

Prior to sent encing, Gueva ra - Zelaya sent a letter to the District C ourt requesting a downward variance “ based on the [ 18 U.S.C. ] § 3553(a) factors, as well as the flawed policy behind the applicable sentencing provision, U.S. S.G. §2L1.2.” ( App. at 57. ) At the sentenci ng hearing o n May 18 , 2011, t he District C ourt considered thos e arguments and decided not to exercise its discretion to vary downward

. Considering the § 3553(a) factors, t he Dist rict Court imposed a sentence of 77 months ’ imprisonment , the bottom of the g uideline range

. ( See Appellant’s Opening Br. at 4.) With an offense level of 21 and a criminal history ranking of category VI, Guevara

- Zelaya’s advisory guideline range was 77 to 96 months ’ imprisonment.

2
II. Discussion Guevara

- Zelaya filed a timely notice of appeal.

3 On appeal, Guevara

- Zelaya a rgues that the application of § 2L1.2 to his case produces a sentence that is substantively unreasonable. 4

1 Guevara

- Zelaya has been arrested twenty times since 1996 on numerous charges including receiving stolen property, hindering apprehension, resisting arre st, trespassing, obstruction of justice, bail jumping, domestic violence, child molestation, assault, and various drug

- related offenses. W e review substantive

2 The District Court also sentenced Guevara

- Zelaya to 3 years of supervised released and ordered him to pay a specia l assessment of $100.

3 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; this Court has jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

4 We have previously upheld sentences imposed on the basis of U.S.S.G. § 2L1.2 , rejecting arguments that that guidelines section is unreasonable and without a proper foundation. See United States v. Lopez , 650 F.3d 952, 967 (3d Cir. 2011) ( holding that § 2L1.2 is not unreasonable and that “District Courts [are] not required to disr egard § 2L1.2[] when they [do] not disagree with it”); United States v. Lopez

- Reyes , 589 F.3d4 reasonable ness under an ab use - of

- discretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). “We afford deference to th e District Court because it is in the best position to determine the appropriate sentence in light of the partic ular circumstances of the case. ” United States v. Dragon , 471 F.3d 501, 506 (3d Cir. 2006) ( internal quotation marks and citations omitted ). When a sentence is “procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on th at particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009).
Guevara

- Zelaya does not contend that there was any procedural error in the calculation of his sentence

. Focusing on substant ive reasonableness, he instead asserts that the District Co urt failed to properly weigh his “acceptance of responsibility for his actions and the nature of his personal history and characteristics, including his motivation for returning to the country and efforts to build a more productive life.” (Appellant’s Opening Br. at 16.) Further, Guevara

- Zelaya contends that the “sentence imposed overstated the gravity of [his] crime and exceeded what was necessary to meet the sentencing goals set forth in § 3553( a) in his particular case.” ( Id. ) We disagree. Here, t he District Court carefully considered the guidelines range and decided not to exercise its discretion in favor of a downward variance. The District Court considered the § 3553(a) factors and fou nd that the guideline ran ge was appropriate in this case. 667, 672 (3d Cir. 2009) ( stating that “[t] he applicable Guidelines range here is not rendered unreasonable simply because § 2L1.2 establishes a base offense level for a nonviolent offense that is equal to or greater than that of certain violent offenses. Congress ‘has the power to define a crime and set its punishments ’” (quoting United States v. MacEwan , 445 F.3d 237, 252 (3d Cir. 2006))).5 Considering the extensive criminal history of the defendant “which [gave] the Court great concern as to further dangerous criminal behavior and further violation of the immigration laws , ” t he Court imposed a sentence at the bottom of the guideline advisory
range , finding it “sufficient, but not greater than necessary to comply with the statutory
purposes
. ” ( App. at 7 6, 7 9. ) T he Court also determined that the sentence imposed would “reflect the ser iousness of the offense, .. . provide just punishment and afford adequate deterrence to reentry by those deported for conviction of crime, and will protect the public from further crimes of the defendant, and will avoid unwarranted disparities.” ( App. at 7 9

- 80. ) Because Guevara

- Zelaya ’s offense and criminal history suit him for the sentencing range set forth in § 2L1.2 , we see no abuse of discretion in the District Court ’s decision not to vary from that range. T he sentence was substantively reasonable.
I II. Conclusion For the foregoing reasons , the j udgment of the District Court will be affirmed.