United States of America v. Jose Vertiz-Cruz, a/k/a Jose Vertiz Cruz, a/k/a Servando Vertiz, a/k/a Jose Alberto,…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4737
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE VERTIZ-CRUZ, a/k/a Jose Vertiz Cruz, a/k/a Servando Vertiz, a/k/a Jose
Alberto, a/k/a Jose Luis Cruz, a/k/a Jose Luis Vertiz, a/k/a Beto Vasgas, a/k/a
Servando Cruz Veritiz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:14-cr-00292-CMH-1)
Submitted: June 30, 2023 Decided: August 3, 2023
Before AGEE and QUATTLEBAUM, Circuit Judges, and MOTZ, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate
Attorney, Valencia D. Roberts, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber,
United States Attorney, Richard Cooke, Assistant United States Attorney, Richmond,
Virginia, Jasmin Salehi Fashami, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose Vertiz-Cruz, a native and citizen of Mexico, appeals the 24-month sentence
imposed pursuant to his guilty plea to illegal reentry after removal or deportation, in
violation of 8 U.S.C. § 1326(a). On appeal, Vertiz-Cruz asserts that the district court failed
to adequately consider his argument for a sentence of time served based on his alleged
overservice of his state sentence and that the court failed to adequately explain the chosen
sentence. Upon review, we hold that the district court procedurally erred in imposing
Vertiz-Cruz’s sentence and that this error was not harmless. Accordingly, we vacate the
judgment and remand for resentencing.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard.” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020).
We are obliged to first “evaluate procedural reasonableness, determining whether the
district court committed any procedural error, such as improperly calculating the
[Sentencing] Guidelines range, failing to consider the § 3553(a) factors, or failing to
adequately explain the chosen sentence.” Id.
“A district court is required to provide an individualized assessment based on the
facts before the court, and to explain adequately the sentence imposed to allow for
meaningful appellate review and to promote the perception of fair sentencing.” United
States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020) (internal quotation marks omitted). In
explaining its sentence, the “court must address or consider all non-frivolous reasons
presented for imposing a different sentence and explain why it has rejected those
arguments.” United States v. Webb, 965 F.3d 262, 270 (4th Cir. 2020) (cleaned up).

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Generally, an “explanation is sufficient if it, although somewhat briefly, outlines the
defendant’s particular history and characteristics not merely in passing or after the fact, but
as part of its analysis of the statutory factors and in response to defense counsel’s
arguments” in mitigation. United States v. Blue, 877 F.3d 513, 519 (4th Cir. 2017) (cleaned
up). “The court’s explanation should set forth enough to satisfy the appellate court that it
has considered the parties’ arguments and has a reasoned basis for exercising its own legal
decisionmaking authority.” United States v. Lozano, 962 F.3d 773, 782 (4th Cir. 2020)
(cleaned up).
While “it is sometimes possible to discern a sentencing court’s rationale from the
context surrounding its decision,” we “may not guess at the district court’s rationale,
searching the record for statements by the Government or defense counsel or for any other
clues that might explain a sentence.” United States v. Ross, 912 F.3d 740, 745 (4th Cir.
2019) (internal quotation marks omitted). Nor may we “assume that the court has silently
adopted arguments presented by a party.” Nance, 957 F.3d at 214 (internal quotation marks
omitted). Where the court fully addresses the defendant’s “central thesis” in mitigation, it
need not “address separately each supporting data point marshalled on its behalf.” Id.
Nonetheless, a district court’s failure to give “specific attention to [a defendant’s]
nonfrivolous arguments” results in a procedurally unreasonable sentence. Lewis, 958 F.3d
at 245 (internal quotation marks omitted).
“[A]rguments made under § 3553(a) for a sentence different than the one that is
eventually imposed are sufficient to preserve claims that the district court erred in not
adequately explaining its rejection of the sentencing arguments.” United States v.

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Boulware, 604 F.3d 832, 838 (4th Cir. 2010). Because Vertiz-Cruz argued for a sentence
of time served, the issue is properly preserved. Therefore, we review for harmless error
whether the alleged procedural errors warrant reversal. United States v. Lynn, 592 F.3d
572, 576, 579 (4th Cir. 2010); Boulware, 604 F.3d at 838.
Vertiz-Cruz requested a sentence of time served on the ground that he had
overserved his state sentence. As the Government concedes, the district court did not
address this argument, which was Vertiz-Cruz’s “central thesis” in mitigation, and which
the Government did address on the merits at sentencing. Nance, 957 F.3d at 214. Because
the court failed to demonstrate consideration of Vertiz-Cruz’s nonfrivolous argument, it is
impossible for us to ascertain the rationale behind the imposed sentence without
“impermissibly speculat[ing] as to the reason for the district court’s sentencing decision.”
Ross, 912 F.3d at 745.
We further conclude that the district court failed to adequately explain the chosen
sentence. At sentencing, the court stated only that “[c]onsidering the factors, which [it]
must assess under [§ ]3553, considering the nature of this offense, [Vertiz-Cruz’s] prior
record, and particularly [his] prior record of reentering the country, . . . a sentence at the
high end of the [G]uideline[s] range [was] appropriate.” (J.A. 50).* While this statement
indicates the court’s rationale, these factors are generally applicable in most illegal reentry
cases and do not respond to Vertiz-Cruz’s argument for a shorter sentence. Because the
* J.A. refers to the joint appendix filed on appeal.

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court’s explanation was inadequate to allow for meaningful appellate review, Vertiz-Cruz’s
sentence is procedurally unreasonable.
Having concluded that Vertiz-Cruz’s argument for a lesser sentence was not
frivolous, and the district court failed to adequately explain the sentence, the sentencing
error is not harmless. Cf. Boulware, 604 F.3d at 839-40 (holding district court’s error
harmless because the court explained that it considered the sentencing factors, “emphasized
the need for specific and general deterrence,” and the defendant’s arguments “were very
weak”).
Accordingly, we vacate Vertiz-Cruz’s sentence and remand for resentencing. 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. The mandate shall issue forthwith so that resentencing may proceed without
delay.
VACATED AND REMANDED

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