US v. Julio Portillo-Sosa

Filing 920080916

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5075

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIO CESAR PORTILLO-SOSA, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:07-cr-00176-REP-1)

Submitted:

September 3, 2008

Decided:

September 16, 2008

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Julio Cesar Portillo-Sosa pled guilty to unauthorized reentry of a removed alien whose removal was subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(b)(2) (2006). The district court properly calculated Portillo-Sosa's

advisory Guidelines range to be 57-71 months of imprisonment, and sentenced him to 71 months' imprisonment.* alleging his sentence is both Portillo-Sosa appeals, and substantively

procedurally

unreasonable.

For the reasons that follow, we affirm.

After United States v. Booker, 543 U.S. 220 (2005), we review a sentence to determine whether it is unreasonable, applying a "deferential abuse-of-discretion standard." States, 128 S. Ct. 586, 591, 594 (2007). engage in a multi-step process at Gall v. United

A district court must First, the

sentencing.

sentencing court must calculate the appropriate Guidelines range by making any necessary factual findings. Id. at 596. Then the court

should afford the parties "an opportunity to argue for whatever sentence they deem appropriate." Id. Next, it should consider the resulting advisory sentencing range in conjunction with the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and determine whether the § 3553(a) factors support the sentence requested by either party. Id. Consideration of the factors in

Portillo-Sosa does not challenge the calculation of his advisory Guidelines range. 2

*

§ 3553(a) does not require the sentencing court to "robotically tick through" every subsection of § 3553(a). Montes-Pineda, 445 F.3d 375, 380 (4th Cir. United States v. 2006) (internal

quotation marks and citation omitted). To determine whether a sentencing court abused its

discretion, we undertake a two-part analysis. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). sentence evaluate for the "significant substance of procedural the

United States v.

First, we examine the and second, we

errors,"

sentence.

Id.

Significant

procedural errors include "`failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .'" Ct. at 597). Id. (quoting Gall, 128 S.

"Substantive reasonableness review entails taking

into account the `totality of the circumstances, including the extent of any variance from the Guidelines range.'" Gall, 128 S. Ct. at 597). Id. (quoting

An appellate court may presume a Rita v.

sentence within the Guidelines range to be reasonable. United States, 127 S. Ct. 2456, 2459, 2462 (2007).

Here, the district court followed the necessary steps in sentencing Portillo-Sosa, and we find no abuse of discretion in its decision to sentence him at the top of the Guidelines range. Accordingly, we affirm the district court's judgment. We dispense

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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

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