United States of America v. Beverly Dianne Vazquez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4038
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEVERLY DIANNE VAZQUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00264-WO-1)
Submitted: October 19, 2011 Decided: November 1, 2011
Before WILKINSON, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Harry L. Hobgood, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Beverly Dianne Vazquez appeals a thirty-seven-month
sentence following a guilty plea to twelve counts of aiding and
assisting the preparation of false income tax returns, in
violation of 26 U.S.C. § 7206(2) (2006). Vazquez’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that he could identify no meritorious issues for
appeal, but questioning whether Vazquez’s sentence is
reasonable. Vazquez was informed of her right to file a pro se
supplemental brief, but has not done so. The Government
declined to file a responsive brief. We affirm the district
court’s judgment.
We review a sentence for procedural and substantive
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). Where, as here, an
appellant has preserved her challenge by drawing arguments from
the 18 U.S.C. § 3553(a) (2006) factors “for a sentence different
than the one ultimately imposed,” an abuse of the court’s
discretion must be reversed unless it constitutes harmless
error. United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010). In determining the procedural reasonableness of a
sentence, we consider whether the district court properly
calculated the Guidelines range, treated the Guidelines as
advisory, considered the § 3553 factors, analyzed any arguments

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presented by the parties, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 51. “Regardless of
whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted).
This court assesses the substantive reasonableness of
the sentence by “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). We presume that
a sentence within a properly calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). That this court would have imposed a different sentence
is not reason alone to vacate the district court’s sentence.
United States v. Morace, 594 F.3d 340, 346 (4th Cir.), cert.
denied, 131 S. Ct. 307 (2010).
At sentencing, Vazquez objected to the two-level
obstruction of justice enhancement in the presentence report,
which established an applicable sentencing range of 37-46
months. The district court granted Vazquez’s objection,
reducing the advisory sentencing range to 30-37 months.
Although Vazquez argued for a downward departure to probation,

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the district court imposed a sentence of thirty-seven months.
We discern no error in Vazquez’s sentence. The court used the
correct advisory Guidelines range, explained its reasoning, and
considered the § 3553(a) factors. The court further emphasized
the severity of Vazquez’s offense, coupled with her refusal to
accept responsibility for her offense, in support of imposition
of a sentence at the top of the advisory Guidelines range.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Vazquez, in writing, of her right to petition the
Supreme Court of the United States for further review. If
Vazquez requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Vazquez. 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

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