USCA4 Appeal: 23-4542 Doc: 34 Filed: 09/11/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4542

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ENIL RAMON MONTOYA VELASQUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00144-D-1)

Submitted: August 15, 2024 Decided: September 11, 2024

Before AGEE and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC, Warrenton, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4542 Doc: 34 Filed: 09/11/2024 Pg: 2 of 5

PER CURIAM:

Enil Ramon Montoya Velasquez pled guilty to distribution of a quantity of cocaine,

in violation of

(a)(1), (b)(1)(C) (Counts 2 and 3), and possession with intent

to distribute a quantity of cocaine, in violation of

(a)(1), (b)(1)(C) (Count

5). A jury subsequently found him guilty of two additional counts: conspiracy to distribute

and possess with intent to distribute 500 grams or more of a mixture containing a detectable

amount of methamphetamine and a quantity of cocaine, in violation of

(a)(1), (b)(1)(A), 846 (Count 1), and distribution of 50 grams or more of a mixture

and substance containing a detectable amount of methamphetamine, in violation of

(a)(1), (b)(1)(B) (Count 4). The district court sentenced Velasquez to 264

months’ imprisonment on Counts 1 and 4 and 240 months’ imprisonment on Counts 2, 3,

and 5, all to run concurrently, for a total term of 264 months.

In Velasquez’s first appeal, we vacated the convictions on Counts 1 and 4 based on

a Speedy Trial Act violation. United States v. Velasquez,

, 142-43 (4th Cir.

2022). Accordingly, we also vacated Velasquez’s entire sentence and remanded for further

proceedings.

. On remand, the district court imposed a sentence of 240 months’

imprisonment on Counts 2 and 3 and a consecutive 24 months’ imprisonment on Count 5,

for a total sentence of 264 months. Velasquez again appealed.

In this appeal, Velasquez argues that his sentence is procedurally unreasonable

because the district court erred in not awarding him a two-point reduction for acceptance

of responsibility. He also contends that the court imposed a presumptively vindictive

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sentence on remand because he received a harsher sentence for the cocaine offenses than

he did at his original sentencing. We affirm.

“We review the reasonableness of a sentence under

(a) using an

abuse-of-discretion standard . . . .” United States v. Nance,

, 212 (4th Cir.

2020). “First, we evaluate procedural reasonableness, determining whether the district

court committed any procedural error, such as improperly calculating the [Sentencing]

Guidelines range, failing to consider the [18 U.S.C.] § 3553(a) factors, or failing to

adequately explain the chosen sentence.” Id. “In assessing whether a district court

properly calculated the Guidelines range, including its application of any sentencing

enhancements, [we] review[] the district court’s legal conclusions de novo and its factual

findings for clear error.” United States v. Pena,

, 512 (4th Cir. 2020) (internal

quotation marks omitted); United States v. Carver,

(4th Cir. 2019)

(reviewing denial of acceptance of responsibility adjustment for clear error); see United

States v. Savage,

(4th Cir. 2018) (defining clear error standard). If the

district court committed no significant procedural error, we then “assess the substantive

reasonableness of the sentence[,] . . . tak[ing] into account the totality of the circumstances

to determine whether the sentencing court abused its discretion in concluding that the

sentence it chose satisfied the standards set forth in § 3553(a).” Nance, 957 F.3d at 212

(cleaned up).

A defendant’s offense level may be decreased by two levels if the defendant clearly

accepted responsibility for his offense. USSG § 3E1.1(a). However, “[a] defendant who

falsely denies, or frivolously contests, relevant conduct that the court determines to be true

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has acted in a manner inconsistent with acceptance of responsibility.” USSG § 3E1.1 cmt.

n.1(A). Sentencing courts are empowered to make factual findings regarding relevant

conduct using a preponderance of the evidence standard. See United States v. Medley,

, 335-36 (4th Cir. 2022). Further, because “[t]he sentencing judge is in a unique

position to evaluate a defendant’s acceptance of responsibility,” the judge’s determination

“is entitled to great deference on review.” USSG § 3E1.1 cmt. n.5. Based on these

standards, we discern no error in the district court’s decision to deny Velasquez a

reduction for acceptance of responsibility.

We turn next to Velasquez’s claim that he received a vindictive sentence on

remand. “When a defendant’s sentence has been vacated on appeal and remanded for

resentence, the district court may impose a new sentence, whether greater or less than the

original sentence, in the light of events subsequent to the first trial that may have thrown

new light upon the defendant.” United States v. Singletary,

, 423 (4th Cir.)

(internal quotation marks omitted), cert. denied,

(2023). However, the court

may not impose a sentence vindictively “against a defendant for having successfully

attacked his first conviction.”

(internal quotation marks omitted). “[A] defendant

may establish judicial vindictiveness” either through affirmative proof of “actual

vindictiveness,” including “direct evidence of animus,” or through “a rebuttable

presumption of vindictiveness whenever a judge imposes a more severe sentence upon a

defendant after a successful appeal.”

(internal quotation marks omitted). A court

may “defeat this presumption . . . by affirmatively identifying relevant conduct or events

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that occurred subsequent to the original sentencing proceedings.”

(internal quotation

marks omitted).

Rather than assessing a new sentence “under the so-called count-by-count

approach” to determine if it is harsher than the original sentence, we employ “the aggregate

package approach.” United States v. Ventura,

(4th Cir. 2017). “Under

that approach, . . . a sentence is not problematic so long as the ultimate sentence for one or

more counts does not exceed that given for all counts sentenced at the conclusion of the

first trial.”

(internal quotation marks omitted). Because the sentence the district

court imposed on Velasquez on remand does not exceed the sentence given for all counts

at his original sentencing, we conclude that a presumption of vindictiveness does not apply

here. Furthermore, Velasquez does not argue actual vindictiveness, and we discern no

direct evidence of animus by the district court.

Accordingly, we affirm the district court’s amended judgment. 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

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