US v. Byron Perez-Lopez

Filing 920091120

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4356 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BYRON ROCAEL PEREZ-LOPEZ, Defendant -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) Submitted: November 17, 2009 Decided: 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 considering sentence, support sentence guideline sufficient increasing his without 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 procedural After determining court calculated the defendant's advisory guidelines range, this court must consider whether the district any court considered by the the Id.; 3553(a) factors, analyzed arguments presented parties, and sufficiently explained the selected sentence. see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). 2 Finally, sentence, we review the into substantive account reasonableness the totality of of the the "taking 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 the sentence from imposed necessary deter United others illegally entering the 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 totality 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., extent the convinced that sentence substantively reasonable. We district facts therefore We affirm the with are and sentence oral imposed by the the the the court. legal before dispense argument because in aid and contentions the court adequately argument presented not materials would decisional process. AFFIRMED 4

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