US v. Lucano Villa-Morales

Filing 920080709


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4652 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LUCANO VILLA-MORALES, a/k/a Jose Cruz, a/k/a Samuel SabastianRodriguez, a/k/a Efego Peres-Montufar, a/k/a Omar Cruz Balbuena, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Senior District Judge. (1:06-cr-00386-WLO) Submitted: April 30, 2008 Decided: July 9, 2008 Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lucano Villa-Morales was convicted by a jury of possession of a firearm by an illegal alien, in violation of 18 U.S.C. 922(g)(5) (2000). months' imprisonment. On appeal, Villa-Morales was sentenced to twenty-seven Finding no error, we affirm. Villa-Morales initially contends that the district court erred in sentencing him based on facts that were neither admitted nor found by a jury beyond a reasonable doubt. However, after United States v. Booker, 543 U.S. 220 (2005), sentencing courts are still required to calculate the applicable advisory guideline range based on appropriate findings of fact. United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). We have previously noted that sentencing factors should continue to be evaluated based on the preponderance of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). district court properly determined Thus, we conclude the advisory Villa-Morales's guideline range based on facts found by a preponderance of the evidence. Villa-Morales unreasonable. also contends that his sentence is When determining a sentence, the district court must calculate the appropriate advisory guideline range and consider it in conjunction with the factors set forth in 18 U.S.C. 3553(a) (2000). 2006). United States v. Davenport, 445 F.3d 366, 370 (4th Cir. Appellate review of a district court's imposition of a - 2 - sentence is for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Sentences within the applicable Guidelines Pauley, 511 F.3d at 473. range may be presumed reasonable. The district court followed the necessary procedural steps in sentencing Villa-Morales, appropriately treating the Sentencing Guidelines as advisory, properly calculating and considering the applicable Guidelines range, and weighing the relevant 3553(a) factors. Furthermore, Villa-Morales's 27-month sentence, which is the lowest end of the Guidelines range and below the statutory maximum, may be presumed reasonable. Thus, we conclude Villa- Morales has failed to establish that the district court abused its discretion in imposing the chosen sentence. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 3 -

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