UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4683

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MARIANO NUNEZ-ORTIZ, a/k/a Mario Ortiz, a/k/a Ramon OrtizPalomarez, a/k/a Mario Ortiz-Flores, 

 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. (1:08-cr-00178-NCT-1) 

Submitted: January 13, 2010 Decided: February 4, 2010 

Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr., 

Assistant Federal Public Defender, Greensboro, North Carolina, 

for Appellant. Angela Hewlett Miller, Assistant United States 

Attorney, Greensboro, North Carolina, for Appellee

Unpublished opinions are not binding precedent in this circuit.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

 Mariano Nunez-Ortiz (Nunez), a Mexican national, 

appeals his eighteen month sentence for reentry into the United 

States by a deported alien, in violation of 8 U.S.C. § 1326(a) 

(2006). Appellate counsel has filed a brief pursuant to Anders 

v. California, 386 U.S. 738 (1967), questioning whether the 

district court erred in sentencing Nunez outside of the advisory 

guideline range, but concluding that there are no meritorious 

grounds for appeal.* Nunez has not filed a pro se supplemental 

brief and the Government elected not to file a brief. We 

affirm. 

 “Regardless of whether the sentence imposed is inside 

or outside the [g]uidelines range, the appellate court must 

review the sentence under an abuse-of-discretion standard.” 

Gall v. United States, 552 U.S. 38, 51 (2007). Appellate courts 

are charged with reviewing sentences for reasonableness, 

considering both the procedural and substantive reasonableness 

of a sentence. Id.

 *

 While Nunez has been released from prison, this appeal is 

not moot as he has a legally cognizable interest in the outcome. 

Though he has been released from prison and likely deported, he 

has not completed his term of supervised release. United 

States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (quoting 

Powell v. McCormack, 395 U.S. 486, 496 (1969)). 

2 
 In determining procedural reasonableness, we first 

assess whether the district court properly calculated the 

defendant’s advisory guidelines range. Id. at 51. We then 

determine whether the district court failed to consider the 18 

U.S.C. § 3553(a) (2006) factors and any arguments presented by 

the parties, treated the guidelines as mandatory, selected a 

sentence based on “clearly erroneous facts,” or failed to 

sufficiently explain the selected sentence. Id.; United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “The district 

court ‘must make an individualized assessment[,]’. . . 

apply[ing] 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) (quoting Gall v. United 

States, 552 U.S. 38, 50 (2007)). Additionally, a district judge 

must detail in open court the reasons behind its chosen 

sentence, “‘set[ting] forth enough to satisfy the appellate 

court that he has considered the parties’ arguments and has a 

reasoned basis for exercising his own legal decisionmaking 

authority.’” Id. (quoting Rita v. United States, 551 U.S. 338, 

356 (2007)). 

 Finally, we review the substantive reasonableness of 

the sentence, “taking into account the ‘totality of the 

circumstances, including the extent of any variance from the 

3 
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 

552 U.S. at 51). 

 Here, it is clear that the district court’s sentence 

was procedurally reasonable, and Nunez’s attorney does not 

contend otherwise. The district court properly calculated 

Nunez’s guidelines range at six to twelve months’ imprisonment 

and provided an individualized assessment, explicitly stating 

the reasons for varying six months upward beyond the high end of 

the guideline range. Accordingly, we find that Nunez’s sentence 

was procedurally reasonable. 

 Similarly, Nunez’s sentence was substantively 

reasonable. Though the sentence was six months outside of the 

upper end of the guideline range, the district judge articulated 

that such an upward departure was justified due to Nunez’s 

substantial criminal history, which he believed was largely 

under represented in the criminal history report. Specifically, 

the judge identified the fact that this was the fourth time 

Nunez had illegally entered the United States, and that he had 

been deported on multiple prior occasions. Moreover, the judge 

noted that Nunez’s criminal offenses appeared to escalate each 

time he returned and prior sentences had not deterred his 

illegal behavior. Therefore, we find that the district court 

did not abuse its discretion in sentencing Nunez to eighteen 

months’ imprisonment. 

4 
5 

 In accordance with Anders, we have reviewed the entire 

record for any meritorious issues and have found none. 

Therefore, we affirm the district court’s judgment. Though we 

generally require that counsel inform his client, in writing, of 

the client’s right to petition the Supreme Court of the United 

States for further review, counsel has informed us that, due to 

Nunez’s deportation, he is unable to contact or otherwise serve 

his client. Accordingly, we refrain from imposing this 

requirement. 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