US v. Jesus Rivera-Nava

Filing 920081016

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4202

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESUS RIVERA-NAVA, Cordero-Nava, a/k/a Jesus Cordero, a/k/a Jesus

Defendant - Appellant.

Appeal from the United States District District of North Carolina, at Durham. Chief Judge. (1:07-cr-00166-JAB-1)

Court for the Middle James A. Beaty, Jr.,

Submitted:

October 14, 2008

Decided:

October 16, 2008

Before KING, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas R. Wilson, GREEN & WILSON, P.A., New Bern, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick Auld, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jesus Rivera-Nava pled guilty to unauthorized reentry of a removed alien whose removal was subsequent to an aggravated felony conviction. The district court properly calculated

Rivera-Nava's advisory Sentencing Guidelines range to be 57 to 71 months of imprisonment and sentenced him to 66 months in prison. Rivera-Nava appeals, alleging his sentence is both

procedurally and substantively unreasonable. that follow, we affirm. We review a sentence for an abuse

For the reasons

of

discretion. To determine

Gall v. United States, 128 S. Ct. 586, 591 (2007).

whether a sentencing court abused its discretion, we undertake a two-part analysis. (4th Cir. 2007). procedural United States v. Pauley, 511 F.3d 468, 473 First, we examine and the we sentence evaluate for the

"significant

errors," Id.

second,

substance of the sentence. include improperly

Significant procedural errors the Guidelines range, treating

calculating

the Guidelines as mandatory, failing to consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors, or failing to

adequately explain the given sentence.

Pauley, 511 F.3d at 473.

Substantive reasonableness entails a review of the totality of the circumstances, and we may presume that a sentence within the advisory Guidelines range is reasonable. Id.; see Rita v.

United States, 127 S. Ct. 2456, 2459 (2007). 2

Here, the district court followed the necessary steps in sentencing Rivera-Nava. calculated, the court heard The Guidelines range was properly from both parties regarding the

Guidelines range and the § 3553(a) factors, and the court noted that it considered all the factors and concluded that the

Guidelines range provided an appropriate basis for determination of sentence. See United States v. Montes-Pineda, 445 F.3d 375,

380 (4th Cir. 2006) (holding that court need not "robotically tick through" every subsection of § 3553(a)), cert. denied, 127 S. Ct. 3044 (2007). In addition, we find no abuse of discretion

in the court's decision to sentence Rivera-Nava in the middle of the Guidelines range, especially when Rivera-Nava himself argued for a sentence within the Guidelines range, noted that the

presentence report covered most of the statutory factors, and did not move for a variance sentence. 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

3