United States v. Cordova, 16-4128
Decision Date | 27 June 2017 |
Docket Number | No. 16-4128,16-4128 |
Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE CORDOVA, Defendant - Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, Chief District Judge. (7:13-cr-00090-D-1)
Before SHEDD and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Jermaine Cordova pled guilty to possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g), 924(e) (2012). He was sentenced to 420 months' imprisonment. In his first appeal, the sole issue Cordova raised was that he was improperly sentenced under the Armed Career Criminal Act (ACCA). While his appeal was pending, the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the ACCA. The Government filed an unopposed motion to remand, acknowledging that Cordova's sentence should be vacated and remanded to the district court for resentencing in accordance with Johnson. We granted the motion. United States v. Cordova, No. 14-4721 (4th Cir. July 16, 2015) (unpublished order).
On remand, the district court noted that Cordova's criminal history category and total offense level produced a Sentencing Guidelines range of 360 months to life, but that, in the absence of the ACCA enhancement, the Guidelines term became the 120-month statutory maximum. Without rearguing the Guidelines issues raised at his first sentencing, Cordova noted his objections to the court's rulings in order to preserve the Guidelines issues for appeal. The court sentenced Cordova to 120 months' imprisonment. The court further explained that even if it had miscalculated Cordova's advisory Guidelines range, it would impose the same sentence as an alternative variant sentence. (J.A. 239).
On appeal Cordova asks whether his 120-month sentence was procedurally and substantively unreasonable, challenging the district court's rulings as to the applicabilityof several Guidelines provisions. The Government argues that these issues are precluded by the mandate rule, because Cordova could have raised these issues in his first appeal but did not. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) ( ). We denied the Government's motion to dismiss based on this argument by prior order, and we decline to revisit the issue.
We do address the Government's assumed error harmlessness argument. The Government contends (1) that, even if we assume that the district court erred in each of the several Guidelines issues Cordova raises on appeal, the court has stated that it would impose the same 120-month sentence as an upward variant sentence; and (2) that this sentence would be substantively reasonable. See United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) ( ); United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011) .
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