United States v. Ruben Pena-Ortiz

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-2398 _____________ UNITED STATES OF AMERICA v. RUBEN DARIO PENA-ORTIZ, also known as WILLIE DIAZ ROSA, also known as LORENZO ECHAVARIA Ruben Dario Pena-Ortiz, Appellant ____________ Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 16-cr-00476-1) District Judge: Honorable Edward G. Smith Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 13, 2018 Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge. (Filed: April 30, 2018) ____________ OPINION* ____________  The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. BOLTON, District Judge. Appellant Ruben Dario Pena-Ortiz pled guilty to re-entry after deportation on February 28, 2017. The United States District Court for the Eastern District of Pennsylvania sentenced him to 42 months’ imprisonment and three years of supervised release. He now challenges his sentence on appeal. For the reasons that follow, we will affirm the District Court’s sentence. I Appellant, a citizen of the Dominican Republic, unlawfully entered the United States around 1995 and settled in Massachusetts. In 1996, on two separate occasions, Appellant was arrested and charged with distribution of a controlled substance. Neither charge was adjudicated at that time. Several years later, in 2003, Appellant was charged with possession with intent to distribute a controlled substance. In May 2004, he pled guilty to the possession charge and served 153 days’ imprisonment. Appellant was thereafter deported to the Dominican Republic on August 8, 2004. In 2010, Appellant unlawfully re-entered the United States. On April 17, 2011, police stopped Appellant for erratic driving. He was charged with re-entry after deportation. Appellant’s arrest also alerted law enforcement to the un-adjudicated 1996 charges. On December 13, 2011, Appellant pled guilty to the 1996 charges. He then pled guilty on February 15, 2012, to the unlawful re-entry charge and was sentenced to 30 months’ imprisonment. He was deported for the second time on November 19, 2013. 2 Around April 2016, Appellant again unlawfully re-entered the United States. On May 31, 2016, Pennsylvania police arrested and charged him with forgery in an unsuccessful attempt to obtain a driver’s license under a false name using false documents. He pled guilty, received probation, and was released into the custody of U.S. Immigration and Customs Enforcement. Appellant was indicted for re-entry after deportation and pled guilty on February 28, 2017. He was sentenced on June 16, 2017. The parties agreed with the PSR’s calculation of offense level 13 and criminal history category IV, yielding a guideline sentencing range of 24 to 30 months. The PSR noted that U.S.S.G. § 5D1.1(c) advises against the ordinary imposition of supervised release on deportable defendants, but Application Note 5 suggests it should still be considered if it may “provide an added measure of deterrence and protection.” The Government requested an upward variance. ...

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