US v. Byron Perez-Lopez
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BYRON ROCAEL PEREZ-LOPEZ, Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00003-REP-1)
November 17, 2009
November 20, 2009
Before WILKINSON, MICHAEL, and KING, 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Affirmed by unpublished per curiam opinion.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. Dana J. Boente, United States Attorney, S. David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Byron Rocael Perez-Lopez pled guilty without a plea agreement to illegal reentry after prior removal, in violation of 8 U.S.C. § 1326(a) (2006). The district court determined
that Perez-Lopez had illegally reentered the United States four times in less than a five-year period, and imposed a 16-month sentence, a variance above the guideline range of 0-6 months. Perez-Lopez appeals his sentence, contending that the district court committed his procedural arguments in and substantive of a errors within by not
explanation, and failing to avoid sentencing disparities or a sentence greater than necessary to serve the purposes We affirm. of
sentencing set forth in 18 U.S.C. § 3553(a) (2006).
We review a sentence for reasonableness under an abuse of discretion standard. (2007). the Id. Gall v. United States, 552 U.S. 38, 51
This review requires appellate consideration of both and substantive whether reasonableness the district of a sentence. properly
calculated the defendant's advisory guidelines range, this court must consider whether the district any court considered by the the Id.;
parties, and sufficiently explained the selected sentence.
see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). 2
reasonableness the totality
circumstances, including the extent of any variance from the Guidelines range." United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted). Applying these standards, we have thoroughly reviewed the record on appeal and conclude that the sentence was reasonable. While the district court did not explicitly refer to Perez-Lopez' personal characteristics, family history, prior
criminal history, or work history at sentencing, we conclude that the court did consider and "apply the relevant § 3553(a) factors to the specific circumstances of the case before it." Carter, 564 F.3d at 328 (quoting Gall, 552 U.S. at 52). The
reasons articulated by the district court for a given sentence need not be "couched in the precise language of § 3553(a)," so long as the "reasons can be matched to a factor appropriate for consideration . . . and [are] clearly tied [to the defendant's] particular situation." 658 (4th Cir. 2007). Here, the district court had before it the Defendant's written and oral arguments in support of leniency. court was most concerned with the repetitive The district nature and United States v. Moulden, 478 F.3d 652,
circumstances of the offense, and specifically rejected PerezLopez' claims that the guideline range provided satisfactory and 3
appropriate punishment that was sufficient but not more than necessary to punish the offense of conviction. variance sentence that and was required to satisfy was the It held that a objectives to of
§ 3553(a), Perez-Lopez
States, and having previously been given lenient treatment, the sentence was necessary to promote respect for the law and to protect the citizens of the United States. The district court
also specifically considered and rejected the Defendant's claim of statistical disparity. court did not commit any On these facts, we find the district "significant procedural error" in
explaining its reasons for the sentence chosen. U.S. at 51. Further, based on the
See Gall, 552 of the
circumstances, including the Defendant's recidivism, and giving "due deference to the on we a district whole, are court's justify decision the that of the the is
§ 3553(a) variance,"
factors, see id.,
substantively reasonable. We district facts therefore We affirm the with are and sentence oral imposed by the the the the
court. legal before
because in aid
contentions the court
decisional process. AFFIRMED 4
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