United States of America v. WILMER ALEJANDRO VILLANUEVA RIVERA, a/k/a Nelson Maurisio Villanuva Rivera, a/k/a…

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-4363

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILMER ALEJANDRO VILLANUEVA RIVERA, a/k/a Nelson Maurisio
Villanuva Rivera, a/k/a Wilmer Alijandro Villanuva Rivera,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00234-MOC-DSC-1)

Submitted: April 28, 2020 Decided: June 30, 2020

Before HARRIS and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Raymond C. Tarlton, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant.
R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wilmer Alejandro Villanueva Rivera appeals his sentence of 15 months in prison
and one year of supervised release after pleading guilty to illegal reentry of a deported
aggravated felon in violation of 8 U.S.C. § 1326(a), (b)(2) (2018). On appeal, he contends
that the district court imposed a procedurally unreasonable sentence by failing to explain
why it rejected his arguments for a reduced sentence and by imposing a supervised release
term on a deportable alien in violation of U.S. Sentencing Guidelines Manual § 5D1.1(c).
*

The Government contends that we should review these issues for plain error since Rivera
did not preserve them, and there was no procedural error in his sentence. We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,
or significantly outside the Guidelines range.’” United States v. Nance, 957 F.3d 204, 212
(4th Cir. 2020) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). In evaluating the
procedural reasonableness of a sentence, we “determin[e] whether the district court
committed any procedural error, such as improperly calculating the Guidelines range,
failing to consider the § 3553(a) factors, or failing to adequately explain the chosen
sentence.” Id. (citing Gall, 552 U.S. at 51). “As is well understood, to meet the procedural
reasonableness standard, a district court must conduct an individualized assessment of the

*
To the extent that Rivera challenges the district court’s decision not to downwardly
depart under the Sentencing Guidelines, as opposed to a downward variance, we may not
review the decision. See United States v. Torres-Reyes, 952 F.3d 147, 151 n.2 (4th Cir.
2020). We therefore limit our review to the court’s decision to deny a variance.

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facts and arguments presented and impose an appropriate sentence, and it must explain the
chosen sentence.” Id. (internal quotation marks and citations omitted).
“Specifically, a district court’s explanation should provide some indication [] that
the court considered the § 3553(a) factors and applied them to the particular defendant, and
also that it considered a defendant’s nonfrivolous arguments for a lower sentence.” Id. at
212-13 (internal quotation marks and citations omitted). “The adequacy of the sentencing
court’s explanation depends on the complexity of each case. There is no mechanical
approach to our sentencing review.” United States v. Blue, 877 F.3d 513, 518 (4th Cir.
2017). Rather, “[t]he appropriateness of brevity or length, conciseness or detail, when to
write, what to say, depends upon [the] circumstances.” Rita v. United States, 551 U.S. 338,
356 (2007). “Importantly, it is also well established that our review of a district court’s
sentencing explanation is not limited to the court’s statements at the moment it imposes
sentence.” Nance, 957 F.3d at 213. “Where a sentencing court hears a defendant’s
arguments and engages with them at a hearing, we may infer from that discussion that
specific attention has been given to those arguments.” Id. (citing Blue, 877 F.3d at 521).
“A criminal defendant who wishes a court of appeals to consider a claim that a ruling
of a trial court was in error must first make his objection known to the trial-court judge.”
Holguin-Hernandez v. United States, 140 S. Ct. 762, 764 (2020). Under the Federal Rules
of Criminal Procedure, a party may preserve a claim of error by informing the court of the
action the party wishes the court to take, or the party’s objection to the court’s action and
the grounds for that objection. Id. (citing Fed. R. Crim. P. 51(b)). “By drawing arguments
from § 3553 for a sentence different than the one ultimately imposed, an aggrieved party

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sufficiently alerts the district court of its responsibility to render an individualized
explanation addressing those arguments, and thus preserves its claim.” United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010); cf. Holguin-Hernandez, 140 S. Ct. at 764
(defendant’s district-court argument for specific lower sentence based on § 3553(a) factors
preserved his appeal claim that his sentence was substantively unreasonable).
“Of course, lodging one specific claim of procedural sentencing error before the
district court, e.g., relying on certain § 3553 factors, does not preserve for appeal a different
claim of procedural sentencing error, e.g., relying on different § 3553 factors.” Lynn, 592
F.3d at 579 n.4. And, merely pointing out facts without making arguments for a different
sentence based on consideration of the § 3553 factors does not preserve a claim. Id. at 580.
“[I]f the appellant lodged his objection to the adequacy of the district court’s sentencing
procedure for the first time on appeal,” we “can review only pursuant to the rigorous plain-
error standard.” Id. at 578. “If, however, the appellant preserved his appellate objection
by articulating it first in the district court, we review for abuse of discretion—reversing if
we find error unless we can conclude that it was harmless.” Id.
Without objection to the calculations, the district court here adopted the presentence
report and determined that Rivera’s Guidelines range was 15 to 21 months in prison and
one to three years of supervised release. Rivera specifically requested that the court impose
a one-year term of supervised release in his objections; and he moved for a departure or
variance in his prison sentence based on USSG § 4A1.3(b), 18 U.S.C. § 3553(a) factors,
and USSG § 2L1.2 cmt. n.7. As recognized by the court, his main argument was that the
court should downwardly depart to a Guidelines range of 10 to 16 months based on USSG

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§ 4A1.3(b). Moreover, when the court stated they were “talking about a sentence of either
10 to 16 months or 15 to 21 months,” he did not object; and the parties agree on appeal that
he asked for a sentence within the range of 10 to 16 months. Since his sentence is within
that range, the Government contends he has not preserved his appeal issues. However, in
his written motion for variance and at sentencing, he requested a downward departure or
variance of three levels, which would yield a Guidelines range of eight to 14 months.
We have reviewed the record and conclude that Rivera’s sentence is procedurally
reasonable regardless of the standard of review. The district court engaged with Rivera’s
specific arguments at sentencing and summarized his main argument when directing the
Government to respond to it. The court explained that it had considered the § 3553(a)
factors and agreed with the Government that a sentence within the Guidelines range was
appropriate. In response to Rivera’s mitigation arguments and the Government’s response
that he was responsible for a lot of his troubles, the court agreed with the Government. As
for his argument that he might have attained legal status when he first came to the United
States at age eight if his father had gone to Immigration Court, the court noted there was
nothing it could do to allow him to stay in the country legally; and he had to stay out of the
United States after deportation. As for his supervised release, the court recognized USSG
§ 5D1.1(c) provides that it ordinarily should not be imposed on a deportable alien; but in
accord with USSG § 5D1.1 cmt. n.5, the court found that Rivera had entered the country
illegally more than once and was a recidivist returnee; and it imposed a small supervised
release term as a deterrent. We find no procedural error in this ruling. See USSG § 5D1.1
cmt. n.5; United States v. Aplicano-Oyuela, 792 F.3d 416, 423-25 (4th Cir. 2015).

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Accordingly, we affirm the district court’s judgment. 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