US v. Garcia

Filing 920070711

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-5189

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JULIO CESAR GARCIA, a/k/a Pedro Aguilares, a/k/a Juan Carlos Sermeno-Rivera, a/k/a Juan Sermeno-Rivera, a/k/a Juan Sermeno, a/k/a Julio Nolasco-Garcia, a/k/a Carlos GarciaNolasco, a/k/a Carlos Alvarez, a/k/a Juan Carlos Alvarado, a/k/a Pedro Antonio Alvarez, a/k/a Manuel Jesus Balladares, a/k/a Carlos Rivera, a/k/a Juan Carlos Garcia, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cr-00210)

Submitted:

June 20, 2007

Decided:

July 11, 2007

Before WILLIAMS, Chief Judge, HAMILTON, Senior Circuit Judge.

WILKINSON,

Circuit

Judge,

and

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Anne M. Chapman, Assistant Federal Public Defender, Sapna Mirchandani, Research and Writing Attorney, Alexandria, Virginia, for Appellant. Charles P. Rosenberg, United States Attorney, David B. Joyce, Special

Assistant Appellee.

United

States

Attorney,

Alexandria,

Virginia,

for

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Julio Cesar Garcia was convicted of illegal reentry by a deported alien following a conviction for an aggravated felony, 8 U.S.C. § 1326(a), (b) (2000). sentence. We affirm. Garcia's base offense level was 8, see U.S. Sentencing Guidelines Manual § 2L1.2(a) (2005). Sixteen levels were added Garcia now appeals his 110-month

because Garcia previously was deported subsequent to a conviction for a crime of violence. offense level was 24, See USSG § 2L1.2(b)(1)(A)(ii). His total

his criminal history category was VI, and Prior

his resulting advisory guideline range was 100-125 months.

to sentencing, the parties filed sentencing memoranda addressing whether Garcia should receive an adjustment to his offense level based on acceptance of responsibility. See USSG § 3E1.1. The

parties addressed how the sentencing factors set forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) should apply to Garcia. The parties also addressed these matters at sentencing. The district court determined that there was no basis upon which to grant an adjustment for acceptance of responsibility. The court found that the guideline range had been correctly

calculated, and the court sentenced Garcia to 110 months in prison. The court did not offer reasons for imposing this sentence;

notably, the court did not address any of the § 3553(a) factors.

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On

appeal,

Garcia

contends

that

his

sentence

is He

procedurally unreasonable because it is longer than necessary.

also contends that he was entitled to the adjustment based on his acceptance of responsibility and that the district court committed reversible error when it did not address the relevant § 3553(a) factors in pronouncing sentence. After United States v. Booker, 543 U.S. 220 (2005), a sentence must be "within the statutorily prescribed range and . . . reasonable." United States v. Hughes, 401 F.3d 540, 546-47 (4th "[A] sentence within the properly

Cir. 2005)(citations omitted).

calculated Guideline range . . . is presumptively reasonable." United States v. Green, 436 F.3d 449, 455-56 (4th Cir.) (internal quotation marks and citation omitted), cert. denied, 126 S. Ct. 2309 (2006). Garcia's 110-month sentence falls within the statutory range of up to twenty years in prison. See 8 U.S.C. § 1326(b)(2).

Moreover, his advisory guideline range was correctly calculated. In this regard, Garcia was not entitled to a reduction based on acceptance of responsibility because he put the Government to its burden of proof at trial. 753 (4th Cir. 2003). reasonable. Garcia correctly states that the district court failed to provide any explanation for imposing sentence and complains See Elliott v. United States, 332 F.3d

Under Green, the sentence is presumptively

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particularly that the court failed to address the factors set forth in § 3553(a). Because he raises these matters for the first time See Fed. R. Crim. P. We

on appeal, our review is for plain error. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).

conclude that, although the district court committed plain error, the error did not affect Garcia's substantial rights because he failed to establish that he would have received a lower sentence but for the error. We note that, while the district court did not

address the sentencing factors in open court, he imposed sentence immediately after hearing argument on their applicability. We therefore affirm the sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the material before the court and argument would not aid the decisional process.

AFFIRMED

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