United States v. Ossie Canseco-Benitez

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 16, 2020
• Docket: 19-4727
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4727

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

OSSIE CANSECO-BENITEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:19-cr-00153-CCE-1)

Submitted: March 11, 2020 Decided: March 16, 2020

Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Aaron B. Wellman, IVEY, MCCLELLAN, GATTON & SIEGMUND, LLP, Greensboro, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Ossie Canseco-Benitez pled guilty to illegal reentry of a deported alien, in violation

of 8 U.S.C. § 1326(a) (2018), and the district court sentenced him to 15 months’

imprisonment and 1 year of supervised release. On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious

issues for appeal, but presenting three questions for review: (1) whether the district court

erred by denying Canseco-Benitez’s motion to dismiss the indictment; * (2) whether the

court erred by denying Canseco-Benitez’s request for a downward departure; and

(3) whether Canseco-Benitez’s sentence is reasonable and complies with United States v.

Booker, 543 U.S. 220 (2005). Although advised of his right to file a supplemental pro se

brief, Canseco-Benitez has not done so. The Government declined to file a response brief.

We affirm.

In his motion to dismiss, Canseco-Benitez claimed that the indictment was defective

under Pereira v. Sessions, 138 S. Ct. 2105 (2018), because it failed to establish that he was

previously deported on a valid deportation order. According to Canseco-Benitez, the

immigration judge who deported him lacked jurisdiction to enter the deportation order

because his notice to appear at the removal hearing failed to provide a date or time for the

hearing. Canseco-Benitez acknowledged that he subsequently received notice of the date

* In his plea agreement, Canseco-Benitez reserved his right to appeal the district court’s denial of his motion to dismiss the indictment.

2 and time of the hearing and that he appeared at the hearing, but he claimed that this

subsequent notice did not cure the defective initial notice.

As defense counsel acknowledges in the Anders brief, we recently addressed this

precise issue in United States v. Cortez, 930 F.3d 350 (4th Cir. 2019). In Cortez, we held

that, whether a case is properly docketed with the immigration court turns on a docketing

rule, 8 C.F.R. § 1003.14(a) (2019), and a violation of that rule does not deprive an

immigration court of authority to adjudicate a case. Cortez, 930 F.3d at 355. Moreover,

failure to include a hearing date and time on a notice to appear does not establish a violation

of § 1003.14(a). Id. at 363-66. Accordingly, Canseco-Benitez’s challenge to the denial of

his motion to dismiss is foreclosed by Cortez.

Defense counsel next questions whether the district court erred by denying Canseco-

Benitez’s request for a downward departure. “We are unable, however, to review a

sentencing court’s decision not to depart unless the court mistakenly believed that it lacked

the authority to do so.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Here,

as in Louthian, the district court considered Canseco-Benitez’s request for a downward

departure but concluded that none was appropriate. “Because the court understood its

authority, but declined to exercise it on the facts of this case,” id., Canseco-Benitez cannot

contest the district court’s decision not to depart downward.

Finally, defense counsel questions the reasonableness of Canseco-Benitez’s

sentence. “We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) [(2018)]

using an abuse-of-discretion standard, regardless of ‘whether the sentence is inside, just

outside, or significantly outside the Guidelines range.’” United States v. Lymas, 781 F.3d

3 106, 111 (4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007) (alteration

omitted)). This review requires consideration of both the procedural and substantive

reasonableness of the sentence. Id. 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) sentencing factors, and sufficiently explained the

selected sentence. Id. at 111-12. After determining that the sentence is procedurally

reasonable, we consider the substantive reasonableness of the sentence, “tak[ing] into

account the totality of the circumstances.” Gall, 552 U.S. at 51. “Any sentence that is

within or below a properly calculated Guidelines range is presumptively reasonable.”

Louthian, 756 F.3d at 306. “Such a presumption can only be rebutted by showing that the

sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.

Our review of the sentencing transcript reveals no significant procedural or

substantive errors. The district court allowed the parties to present arguments, gave

Canseco-Benitez the opportunity to allocute, considered the 18 U.S.C. § 3553(a)

sentencing factors, and explained the selected sentence. Moreover, the court adequately

addressed Canseco-Benitez’s requests for a downward departure and arguments for a lesser

sentence. Regarding substantive reasonableness, Canseco-Benitez fails to rebut the

presumption that his within-Guidelines-range sentence is substantively reasonable. See

Louthian, 756 F.3d at 306.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal. We therefore affirm the criminal judgment. This

4 court requires that counsel inform Canseco-Benitez, in writing, of the right to petition the

Supreme Court of the United States for further review. If Canseco-Benitez 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 Canseco-Benitez.

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