United States v. Roberto Del Pilar
20-4310
| 4th Cir. | Aug 4, 2021Background
- Roberto Martinez Del Pilar pleaded guilty to illegal reentry after a prior aggravated-felony conviction in violation of 8 U.S.C. § 1326(a), (b)(2) and received a 105-month sentence.
- On appeal he challenged only the procedural reasonableness of his sentence.
- Del Pilar argued the district court impermissibly "double counted" two prior state convictions (cocaine trafficking and statutory rape) by using them both to increase his offense level under USSG § 2L1.2 and to assign criminal-history points.
- He also contended the court should have applied USSG § 5G1.3(b) (requiring concurrency when the prior undischarged term arises from relevant-conduct offenses) instead of § 5G1.3(d) (permitting partial consecutive imprisonment).
- Finally, Del Pilar claimed the court failed to consider the Sentencing Commission policy statement about multiple harms (USSG ch.1, pt. A, §3, p.s.) as part of the § 3553(a) analysis when deciding concurrency.
- Because he did not preserve these objections at sentencing, the Fourth Circuit reviewed them for plain error and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court impermissibly used the same prior convictions to both enhance offense level under USSG § 2L1.2 and assign criminal-history points (double counting) | Del Pilar: Using same priors for §2L1.2 enhancements and criminal-history points is improper double counting | Government: Guidelines commentary permits considering the conviction for both purposes; not prohibited | No plain error — commentary to §2L1.2 authoritatively allows both; prior precedent upholds this practice |
| Whether the court should have applied USSG § 5G1.3(b) (concurrent) instead of § 5G1.3(d) (partial consecutive) | Del Pilar: Prior undischarged term was relevant and required concurrent sentence under §5G1.3(b) | Government: Commentary to §5G1.3 excludes §5G1.3(b) when the prior conviction produced an increase under §2L1.2, so §5G1.3(d) applies | No plain error — commentary disallows §5G1.3(b) in this circumstance; §5G1.3(d) properly applied |
| Whether the district court failed to consider the Sentencing Commission policy that "the relationship between punishment and multiple harms is not simply additive" (USSG ch.1, pt. A, §3, p.s.) in assessing concurrency under §3553(a)(5) | Del Pilar: Court did not address the policy statement and thus failed required §3553(a) consideration | Government: District court considered §3553(a) factors (seriousness, deterrence, history/characteristics, disparity) and need not recite every subsection verbatim | No plain error — court adequately considered §3553(a) factors; need not "robotically" tick every subsection |
| Standard of review — preservation and plain-error review | Del Pilar: Challenges treated as preserved (implicit) | Government: Objections were not preserved, so plain-error standard applies | Court applied plain-error review; appellant failed to show plain error affecting substantial rights |
Key Cases Cited
- United States v. Shephard, 892 F.3d 666 (4th Cir. 2018) (sets out deferential abuse-of-discretion standard for sentencing review)
- United States v. Provance, 944 F.3d 213 (4th Cir. 2019) (procedural-reasonableness errors include miscalculating Guidelines, inadequate §3553(a) consideration, or insufficient explanation)
- United States v. Cohen, 888 F.3d 667 (4th Cir. 2018) (elements of plain-error review in sentencing appeals)
- United States v. Peterson, 629 F.3d 432 (4th Cir. 2011) (Sentencing Guidelines commentary is authoritative unless inconsistent with statute, Constitution, or plainly erroneous reading)
- Stinson v. United States, 508 U.S. 36 (1993) (Supreme Court holding that Guidelines commentary is binding unless invalid)
- United States v. Crawford, 18 F.3d 1173 (4th Cir. 1994) (upholding use of a prior conviction both as a specific offense characteristic and for criminal-history points)
- United States v. Lynn, 912 F.3d 212 (4th Cir. 2019) (district court must assess §3553(a) factors when deciding concurrency but has discretion)
- United States v. Johnson, 445 F.3d 339 (4th Cir. 2006) (court need not "robotically" enumerate every §3553(a) subsection)