                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2009

USA v. Calvin Nez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4368




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"USA v. Calvin Nez" (2009). 2009 Decisions. Paper 1215.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1215


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                                                                 NOT PRECEDENTIAL


                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                       _____________

                                        No. 08-4368
                                       _____________

                               UNITED STATES OF AMERICA

                                              v.

                                      CALVIN J. NEZ,

                                             Appellant

                      On Appeal From the United States District Court
                           for the Middle District of Pennsylvania
                                       (07-cr-00368)
                      District Judge: Honorable James F. McClure, Jr.

                         Submitted Under Third Circuit LAR 34.1(a)
                                      May 28, 2009

                 Before: FISHER, CHAGARES, and COWEN, Circuit Judges

                                    (Filed: June 8, 2009)


                                       _____________

                                 OPINION OF THE COURT
                                     _____________


CHAGARES, Circuit Judge.

          Calvin Nez appeals from the District Court’s judgment of sentence. We will

affirm.
       Nez was sentenced to a 200-month federal prison term for shooting a man in the

chest after fleeing the scene of a robbery. While serving that term, Nez attacked a fellow

inmate, stabbing him numerous times. Nez was convicted of assault based upon this

conduct. The District Court imposed a 63-month prison term to run consecutively to the

sentence he was already serving. Nez filed this appeal, arguing that the District Court’s

sentence was unreasonable.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court

has jurisdiction pursuant to 18 U.S.C. § 3742. This Court reviews the District Court’s

sentence for reasonableness, evaluating both its procedural and substantive underpinnings

using a deferential abuse of discretion standard. Gall v. United States, 128 S. Ct. 586,

594 (2007).

       Nez argues that the District Court’s decision to impose a consecutive 63-month

sentence was unreasonable. Specifically, he argues that the sentence should have been

imposed to run concurrently (rather than consecutively) to the sentence he was already

serving.

       This argument is meritless. The transcript of the sentencing hearing reveals that

the District Court used the correct methodology for determining Nez’s sentence. The

District Court analyzed the factors enumerated in 18 U.S.C. § 3553(a), announced its

sentence based upon that analysis, and then reiterated that “[i]n determining the particular

sentence to be imposed, the [District] Court considered all seven factors set forth in 18



                                             2
United States Code, section 3553(a).” See Appendix (App.) 55-57.1

       The District Court did not abuse its discretion in holding that, in light of those

factors, a consecutive sentence was necessary. For example, the offense of conviction

(stabbing a fellow inmate) was heinous. Coupled with the offense that landed him in

federal prison for 200 months in the first place, see Pre-Sentence Report ¶ 29; App. 54-

55, it revealed him to be particularly violent. The District Court reasonably balanced

these and other considerations in arriving at its sentence and, in so doing, determining that

a concurrent prison term (rather than a consecutive one) would not have sufficed.

       For the above reasons, we will affirm the District Court’s judgment of sentence.




       1
          Nez complained that the District Court did not expressly state that it recognized
that it had the ability to impose a concurrent sentence. However, no such statement is
required. All that is required is consideration of the § 3553(a) factors, United States v.
Velasquez, 304 F.3d 237, 241-42 (3d Cir. 2002), and that is precisely what the District
Court did.

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