US v. Marco Flores-Ansencio

Filing 920081023

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5084 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCO FLORES-ANSENCIO, Defendant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-00178-REP-1) Submitted: October 21, 2008 Decided: October 23, 2008 Before MICHAEL, TRAXLER, and DUNCAN, 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 Affirmed by unpublished per curiam opinion.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, S. David Schiller, Assistant United States Attorneys, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcos Flores-Ansencio pled guilty to illegal reentry, in violation of 8 U.S.C. ' 1326(a) (2000), and was sentenced to twelve months= imprisonment, range a sentence by at the top of the advisory guideline He and suggested his the federal sentencing it was to We guidelines. unreasonable appeals claiming sentence, the asserting that that district court failed provide a sufficient statement of reasons for the sentence. affirm. Flores-Ansencio did not contest the adequacy of the district court=s explanation for his sentence below, thus we review for plain error his present claim on appeal. States v. Olano, 507 U.S. 725, 731 (1993). sentence for reasonableness, we first United When reviewing a whether the determine district court committed any procedural error, such as failing to calculate the guideline range properly, consider the ' 3553(a) factors, or explain the sentence adequately, and then decide whether the sentence is substantively reasonable. Gall v. United States, 128 S. Ct. 586, 597-98 (2007). While a district court must consider the various ' 3553(a) factors and explain its sentence, it need not explicitly reference ' 3553 or discuss every factor on the record, particularly when the court imposes a sentence within the guideline range. United States v. Johnson, 455 F.3d 339, 345 (4th Cir. 2006). 2 Here, the district Court followed the necessary procedural steps. the record that the district court It is clear from the ' 3553(a) considered factors with respect to this defendant and that it considered Flores-Ansencio=s arguments at sentencing. further elaboration by the district court. There was no need for See United States v. Montes-Pineda, 436 F.3d 375, 380 (4th Cir. 2006). The appeals court must also consider the substantive reasonableness of the sentence. sentence within a properly Gall, 128 S. Ct. at 597. guideline range, A as calculated Flores-Ansencio=s sentence was, may be accorded a presumption of reasonableness. 2462 (2007). See Rita v. United States, 127 S. Ct. 2456, Flores-Ansencio does not contest the calculation of his guideline range, and the district court sentenced him within the properly-calculated range. As noted, the district court imposed the sentence after considering the arguments at the sentencing hearing, including Flores-Ansencio=s request for leniency, and the ' 3553(a) factors. The district court expressly rejected his request for leniency, noting that FloresAnsencio had failed for to take advantage of the and numerous that his the was opportunities previous country leniency did We previously deter received from his deportation illegally. not him that re-entering sentence conclude reasonable. 3 We district facts therefore We affirm the with sentence oral imposed by the the the the court. legal before dispense argument because in aid and contentions the court are and adequately argument presented not materials would decisional process. AFFIRMED 4

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