US v. Elder Raxcaco

Filing 920080724

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5154

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ELDER RAXCACO, 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-00271-REP-1)

Submitted:

March 20, 2008

Decided:

July 24, 2008

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Sara E. Chase, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Elder Raxcaco pled guilty to being unlawfully in the United States after having been deported, in violation of 8 U.S.C. § 1326 (2000). imprisonment. He was sentenced to twelve months and one day On appeal, Raxcaco argues his sentence was

unreasonable based on the sentencing factors set forth in 18 U.S.C. § 3553(a) (2000), and he challenges the district court's decision to impose a variant sentence. district court. Following United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process at sentencing. First, it must calculate the appropriate advisory guidelines range. It must then consider the resulting range in conjunction with the factors set forth in § 3553(a) and determine an appropriate We affirm the judgment of the

sentence. 2006).

United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

Appellate review of a district court's imposition of a 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). The appellate court must first ensure

that the district court committed no procedural error, such as "failing to calculate (or improperly calculating) the Guideline range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

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erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guideline range." Gall, 128 S. Ct. at 597.

If there are no procedural errors, the appellate court then considers the substantive reasonableness of the sentence. Id. "Substantive reasonableness review entails taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Pauley, 511 F.3d at 473. While the

court may presume a sentence within the Guidelines range to be reasonable, it may not presume a sentence outside the range to be unreasonable. Id. Moreover, it must give due deference to the

district court's decision that the § 3553(a) factors justify imposing a variant sentence and to its determination regarding the extent of any variance. Even if the reviewing court would have

reached a different sentencing result on its own, this fact alone is insufficient to justify reversal of the district court. 474. Here, the district court followed the necessary Id. at

procedural steps in sentencing Raxcaco, properly calculating the Guidelines range and considering that recommendation in conjunction with the § 3553(a) factors. and the district court's In light of the facts of this case, meaningful articulation of its

consideration of the § 3553(a) factors and its bases for departing

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from the recommended guideline range, we find the district court's decision to depart, and the extent of the departure, reasonable. Accordingly, we affirm the district court's judgment. 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

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