US v. Marco Flores-Ansencio

Filing 920081023

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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