Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 14-4572
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
ASAEL GOMEZ-JIMENEZ, a/k/a Luis Aguilar-Sierra,
Defendant - Appellant.
No. 14-4696
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
ANTHONY WAYNE WIGGINS,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:12-cr-00274-D-2; 5:12-cr-00274-D-1)
Submitted:
August 20, 2015
Decided:
September 29, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior

Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North

Carolina; Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill,
North Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Asael Gomez-Jimenez appeals his 324-month sentence pursuant
to a guilty plea to possession with intent to distribute cocaine
(Count 8) and eluding examination and inspection by immigration
officers
(Count
10),
and
jury
verdict
for
conspiracy
to
distribute and possess with intent to distribute 5 kilograms or

more of cocaine (Count 1) and distribution of cocaine (Count 5).
His
co-conspirator,
convictions
and
Anthony
resulting
Wiggins,
life
appeals
sentence
for
his
conspiracy
jury
to
distribute and possess with intent to distribute 5 kilograms or

more of cocaine (Count 1), possession with intent to distribute
28 grams or more of cocaine base (Count 6), and possession of a
firearm by a convicted felon (Count 7).
challenge
their
respective
sentences
On appeal, they both

as
procedurally
substantively
unreasonable.
Wiggins
additionally
the
court
denying
his
district
erred
in
Their appeals have been consolidated.
motion
argues
to
and
that
suppress.
We affirm.
We first address Wiggins appeal of the district courts

denial of his motion to suppress.
We review factual findings
underlying a district courts denial of a motion to suppress for

clear error and legal conclusions de novo.
Hill,
776
evidence
F.3d
in
the
243,
247
light
party prevailing below.
(4th
most
Cir.
2015).
favorable
to
the
United States v.
We
construe
the
Government,
the
United States v. Farrior, 535 F.3d 210,

3
217 (4th Cir. 2008).
The Government bears the burden of proof
in justifying a warrantless search or seizure.
United States v.
Watson, 703 F.3d 684, 689 (4th Cir. 2013).

The Fourth Amendment does not prohibit all searches and
seizures, merely those found to be unreasonable.
Jimeno, 500 U.S. 248, 250 (1991).
Florida v.
A warrantless search is per
se unreasonable subject only to a few specifically established

and well-delineated exceptions, one of which is a search that
is conducted pursuant to consent.
Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973) (internal quotation marks, alterations

and citations omitted).
of
the
property,
or
Such consent may be given by the owner

by
third-party
possessing
common
authority over or other sufficient relationship to the premises

or effects to be searched.
164, 171 (1974).
mutual
use
of
and
United States v. Matlock, 415 U.S.
Common authority is based upon the parties

access
to
the
property,
such
that
it
is
reasonable to recognize that each party has the right to permit

the inspection in his own right and that the others have assumed
the risk that one of their number might permit the common area
to
be
searched.
consenting
party
Id.
does
at
not
171
n.7.
have
Moreover,
common
even
authority
if
the
over
the
property sought to be searched, a search will still be upheld

where an officer reasonably believes in the existence of such
authority.
See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

4
Having reviewed the record with the parties arguments in mind,

we conclude that the court did not err in concluding that the
officers
reasonably
believed
that
Wiggins
girlfriend
had
authority to consent to a search of the residence, even if she

lacked actual authority.
Accordingly, we affirm the denial of
Wiggins motion to suppress.

We
review
the
reasonableness
of
Wiggins
Jimenezs sentences for abuse of discretion.
procedural
error,
such
as
improper
Gomez-
United States v.
Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).

for
and
We first review
calculation
of
the
Guidelines range, failure to consider the 18 U.S.C. 3553(a)

(2012) sentencing factors, selecting a sentence based on clearly
erroneous facts, or failure to adequately explain the sentence.
Howard,
773
F.3d
at
examine
substantive
528.
Absent
reasonableness
totality of the circumstances.

properly
calculated
Guidelines
Id.
any
of
procedural
the
sentence
error,
we
under
the
Sentences within or below a
range
are
presumed
reasonable,
and this presumption can only be rebutted by showing that the

sentence is unreasonable when measured against the 18 U.S.C.
3553(a) factors.
United States v. Louthian, 756 F.3d 295,
306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

Because
statutory
of
Wiggins
mandatory
imprisonment.
prior
minimum
felony
sentence
on
drug
Count
offenses,
1
was
his
life
Citing Wiggins long criminal history and lack

5
of respect for the law, the district sentenced Wiggins to life

imprisonment on Counts 1 and 6, and 120 months on Count 7.
Relying
(2013),
on
Wiggins
Alleyne
argues
v.
United
that
the
States,
district
133
S.
court
Ct.
2151
violated
his
Fifth and Sixth Amendment rights by enhancing his sentence on

the basis of prior convictions that were neither alleged in the
indictment nor proven beyond a reasonable doubt.
Contrary to
Wiggins assertions, there was no error, plain or otherwise, in

the district courts imposition of the enhanced penalty.
United
States
v.
Higgs,
353
F.3d
281,
324
(4th
Cir.
See
2003)
(reviewing for plain error a constitutional claim raised for the

first time on appeal).
In Alleyne, the Supreme Court held that the Sixth Amendment
requires a jury to find beyond a reasonable doubt any facts that
increase a defendants mandatory minimum sentence.
S. Ct. at 2163-64.
Alleyne, 133
The Alleyne Court recognized, and expressly
declined to reconsider, however, a narrow exception that allows

a judge to find that a defendants prior conviction occurred.
Id. at 2160 n.1 (citing Almendarez-Torres v. United States, 523
U.S.
224
(1998)).
Almendarez-Torres
remains
good
law,
and
[this court] may not disregard it unless and until the Supreme
Court holds to the contrary.
United States v. McDowell, 745
F.3d 115, 124 (4th Cir. 2014), cert. denied, 135 S. Ct. 942
(2015).
Accordingly, this argument is unavailing.

6
Wiggins also asserts that the district court miscalculated

his Guidelines range on Count 6.
According to Wiggins, his
Guidelines range was 235 to 293 months.
Because Wiggins failed
to object below, this claim too is reviewed for plain error.

See United States v. Olano, 507 U.S. 725, 731-32 (1993) (stating
standard
for
plain
error
review).
Contrary
to
Wiggins
assertions, the probation officer correctly grouped the three

counts
for
Guidelines
Sentencing
range
was
Guidelines
life
purposes.
imprisonment
The
because,
resulting
even
though
Wiggins offense level and criminal history category generated a

range
of
235
to
293
months,
the
statutory
mandatory
minimum
sentence on Count 1, life imprisonment, was greater than the

maximum of the applicable Guidelines range.
See U.S. Sentencing
Guidelines Manual 5G1.2(b) (2013).

Wiggins also suggests that the district court cut short his
right to allocute at sentencing.
A defendant has a due process
right to address the court if he expresses a desire to do so.

Green v. United States, 365 U.S. 301, 304 (1961); Ashe v. North
Carolina, 586 F.2d 334, 336 (4th Cir. 1978); Fed. R. Crim. P.
32(i)(4)(ii) (right to allocution in federal cases).
Allocution
is the right to present a statement in mitigation of sentencing.

United States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004); Fed.
R. Crim. P. 32(i)(4)(ii).
However, that right is not unlimited.
Ashe, 586 F.2d at 336-37.
Allocution may be limited both as to

7
duration and as to content.

more
than
reasonable
[The defendant] need be given no
time;
irrelevancies or repetitions.
he
need
not
be
heard
on
Id. at 337.
Here, Wiggins was given an opportunity to speak prior to

the
imposition
of
his
sentence.
However,
when
it
became
apparent that Wiggins wished to argue the issue of guilt or

innocence, rather than in mitigation of his sentence, the court
intervened.
Even so, the court permitted Wiggins to continue
again with his allocution.
Having reviewed the transcript, we
conclude that Wiggins was not denied the right to allocute.

Last, Wiggins challenges the substantive reasonableness of
his sentence, primarily arguing that a life sentence was greater
than necessary.
However, a statutorily mandated sentence, which
Wiggins received, is per se reasonable.

224.
Farrior, 535 F.3d at
In light of the above, we affirm Wiggins convictions and
sentence.
Gomez-Jimenez was sentenced within his advisory Guidelines
range to 324 months imprisonment.
Defense counsel moved for a
variant sentence of 180 months based on Gomez-Jimenezs lack of

criminal history, his newly acquired faith in prison, advanced
age
upon
release,
responsibilities.
impending
deportation,
and
family
The Government sought a sentence at the top
of the Guidelines range.
In rendering a sentence, the district court stated that it

had
considered
all
of
the
parties
arguments,
the
advisory
Guidelines range, and the various 3553(a) factors.
Noting
Gomez-Jimenez played a critical role in the organization and

that
he
was
committed
to
being
drug
dealer,
the
court
stressed that specific deterrence and general deterrence are

critical here in light of the serious nature of the conduct, the
entire
record,
[and
that
Gomez-Jimenez]
deserve[s]
very
serious punishment.
Gomez-Jimenez first argues that the district court failed
to explain why it rejected his non-frivolous arguments for a
lesser
sentence,
unreasonable.
thus
rendering
his
sentence
procedurally
The district court stated that it had considered
the arguments proffered on Gomez-Jimenezs behalf for a lesser

sentence.
The
court
noted,
however,
that
Gomez-Jimenez
was
involved in very serious drug offenses, and that he chose to

continue his drug activities even after his brothers pled guilty
to
drug
offenses.
Although
the
court
observed
that
Gomez-
Jimenez may have done a little honest work, it noted that he

certainly spent the bulk of [his] time as a drug dealer.
The
court further stated that his possible religious conversion in

prison was not mitigating.
The court also explained that it did
not
proposed
find
Gomez-Jimenezs
downward
variance
to
180
months-or a sentence at the bottom of the Guidelines range-to be

9
remotely appropriate.
sufficiently
We conclude that the district court
explained
why
it
did
not
find
that
his
Gomez-Jimenezs
arguments in mitigation compelling.

Gomez-Jimenez
also
contends
sentence
was
substantively unreasonable, arguing that his lack of criminal

history
and
sentence.
his
low
risk
of
recidivism
warranted
lesser
In a related argument, he maintains that the district
court gave too much weight to general deterrence, making his

sentence
The
greater
than
burden
rests
necessary
with
presumption
of
sentence
unreasonable
is
factors.
to
the
reasonableness
when
punish
and
defendant
by
deter
to
rebut
the
demonstrating
that
the
measured
against
the
3553(a)
United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).

Jimenezs
him.
case,
the
district
court
thoroughly
In Gomez-
considered
his
circumstances and history, and found that deterrence mandated

the chosen sentence.
The courts explanation for its chosen
sentence was thorough and well-reasoned.
Simply stated, the
court
of
crimes
implicitly
and
organization
his
found
that
critical
outweighed
his
the
severity
role
lack
in
the
of
Gomez-Jimenezs
drug-trafficking
prior
convictions.
Furthermore, Gomez-Jimenezs assertion that he had a low risk of

recidivism was undermined by his continuing involvement in the
drug
trade
even
after
his
family
10
members
received
lengthy
sentences.
presumption
Gomez-Jimenez
of
has
reasonableness
simply
accorded
failed
his
to
rebut
the
within-Guidelines
sentence.
Accordingly, we affirm the criminal judgments.
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
11

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

UNITED STATES OF AMERICA,

August 20, 2015

September 29, 2015

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior

Affirmed by unpublished per curiam opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North

Unpublished opinions are not binding precedent in this circuit.

distribute and possess with intent to distribute 5 kilograms or

distribute and possess with intent to distribute 5 kilograms or

On appeal, they both

Their appeals have been consolidated.

We first address Wiggins appeal of the district courts

We review factual findings

underlying a district courts denial of a motion to suppress for

party prevailing below.

United States v. Farrior, 535 F.3d 210,

217 (4th Cir. 2008).

The Government bears the burden of proof

in justifying a warrantless search or seizure.

Watson, 703 F.3d 684, 689 (4th Cir. 2013).

A warrantless search is per

se unreasonable subject only to a few specifically established

412 U.S. 218, 219 (1973) (internal quotation marks, alterations

Such consent may be given by the owner

authority over or other sufficient relationship to the premises

United States v. Matlock, 415 U.S.

Common authority is based upon the parties

reasonable to recognize that each party has the right to permit

property sought to be searched, a search will still be upheld

See Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).

Having reviewed the record with the parties arguments in mind,

authority to consent to a search of the residence, even if she

Accordingly, we affirm the denial of

Wiggins motion to suppress.

Jimenezs sentences for abuse of discretion.

Howard, 773 F.3d 519, 527-28 (4th Cir. 2014).

Guidelines range, failure to consider the 18 U.S.C. 3553(a)

totality of the circumstances.

Sentences within or below a

and this presumption can only be rebutted by showing that the

United States v. Louthian, 756 F.3d 295,

306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

Citing Wiggins long criminal history and lack

of respect for the law, the district sentenced Wiggins to life

Fifth and Sixth Amendment rights by enhancing his sentence on

Wiggins assertions, there was no error, plain or otherwise, in

(reviewing for plain error a constitutional claim raised for the

The Alleyne Court recognized, and expressly

declined to reconsider, however, a narrow exception that allows

United States v. McDowell, 745

Accordingly, this argument is unavailing.

Wiggins also asserts that the district court miscalculated

According to Wiggins, his

Guidelines range was 235 to 293 months.

Because Wiggins failed