UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4581

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOISES RIVAS-POSADA, a/k/a Moises Rivers, a/k/a Moises Rivas 

Posada, a/k/a Moises Rivera, a/k/a Moises Posada,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:15-cr-00154-LMB-1)

Submitted: July 28, 2016 Decided: August 3, 3016

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Caroline S. 

Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant 

Federal Public Defender, Alexandria, Virginia, for Appellant. 

Angela Mulunesh Fiorentino-Rios, Assistant United States 

Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Moises Rivas-Posada pled guilty, pursuant to a plea 

agreement, to unlawful reentry after removal following 

conviction of an aggravated felony, in violation of 8 U.S.C. 

§ 1326(a), (b)(2) (2012). The district court sentenced RivasPosada to 36 months’ imprisonment and 3 years’ supervised 

release. Counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), stating that there are no 

meritorious grounds for appeal but questioning whether the 

sentence is reasonable. Rivas-Posada has not filed a 

supplemental pro se brief, despite receiving notice of his right 

to do so. We affirm in part, vacate in part, and remand for 

further proceedings.

We review a sentence for reasonableness, applying “a 

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

States, 552 U.S. 38, 41 (2007). This review entails appellate 

consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In determining 

procedural reasonableness, we consider whether the district 

court properly calculated the defendant’s advisory Sentencing 

Guidelines range, gave the parties an opportunity to argue for 

an appropriate sentence, considered the 18 U.S.C. § 3553(a) 

(2012) factors, and sufficiently explained the selected 

sentence. Id. at 49-51. If there are no procedural errors, we 
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then consider the substantive reasonableness of a sentence,

evaluating “the totality of the circumstances.” Id. at 51. A 

sentence is presumptively reasonable if it is within or below

the Guidelines range, and this “presumption can only be rebutted 

by showing that the sentence is unreasonable when measured 

against the 18 U.S.C. § 3553(a) factors.” United States v. 

Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

In this case, the record establishes that Rivas-Posada’s 

below-Guidelines sentence of 36 months’ imprisonment is 

procedurally and substantively reasonable. The district court 

correctly calculated Rivas-Posada’s criminal history category, 

total offense level, and Guidelines range, provided the parties 

the opportunity to argue for an appropriate sentence, and 

considered Rivas-Posada’s allocution. The court provided an 

adequate and individualized explanation of its sentencing, 

highlighting Rivas-Posada’s risk of recidivism. Contrary to 

counsel’s assertion, the district court considered the age of 

Rivas-Posada’s felony convictions, and adequately described why 

it was not persuaded that this factor warranted further 

variance. 

Turning to the supervised release portion of the sentence, 

in the case of a deportable alien who will likely be deported 

after imprisonment, the Sentencing Guidelines provide that, 

unless otherwise required by statute, “[t]he court ordinarily 
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should not impose a term of supervised release.” U.S. 

Sentencing Guidelines Manual § 5D1.1(c) (2014). However, if the 

district court concludes that a supervised release term would 

provide “an added measure of deterrence and protection based on 

the facts and circumstances of a particular case,” then “[t]he 

court should . . . consider imposing a term of supervised 

release.” Id. § 5D1.1 cmt. n.5. Although the district court 

should make such a finding on the record, “where a sentencing 

court (1) is aware of Guidelines section 5D1.1(c); (2) considers 

a defendant’s specific circumstances and the § 3553(a) factors; 

and (3) determines that additional deterrence is needed, nothing 

more is required.” United States v. Aplicano-Oyuela, 792 F.3d 

416, 424 (4th Cir. 2015) (alterations and internal quotation 

marks omitted). 

In the instant case, there is no evidence that the district 

court was aware of the applicability of USSG § 5D1.1(c). The 

presentence investigation report failed to mention § 5D1.1, and 

neither the district court nor the parties referenced it during 

the sentencing hearing or in sentencing memoranda. We conclude 

this failure to consider USSG § 5D1.1(c) is procedurally 

unreasonable. Accordingly, we vacate the portion of the 
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sentencing imposing supervised release and remand for further 

proceedings.∗

Pursuant to Anders, we have reviewed the remainder of the 

record in this case and have found no other meritorious grounds 

for appeal. Accordingly, we affirm Rivas-Posada’s conviction 

and 36-month term of imprisonment. 

This court requires that counsel inform Rivas-Posada, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Rivas-Posada requests that 

a petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on Rivas-Posada. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

 ∗ We express no opinion regarding the propriety of 

supervised release in this case.