US v. Michael Hernandez

Filing 920100618

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4463 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:08-cr-00246-F-1) Submitted: May 18, 2010 Decided: June 18, 2010 Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Eric J. Brignac, Research and Writing Specialist, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Hernandez pleaded guilty to possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. 841(a) (2006). The district court sentenced Hernandez Finding no to 327 months of imprisonment and he now appeals. error, we affirm. Hernandez unreasonable. argues that the sentence is procedurally We review a sentence for reasonableness, applying Gall v. United States, 552 an abuse of discretion standard. U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the sentence for "significant procedural error," including "failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider a the [18 U.S.C.] based 3553(a) clearly [(2006)] factors, selecting sentence on erroneous facts, or failing to adequately explain the chosen sentence . . . ." consider imposed." within a the Id. Gall, 552 U.S. at 51. reasonableness Finally, we "then of the sentence substantive This court presumes on appeal that a sentence calculated advisory guidelines range is properly substantively reasonable. See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); Rita v. United States, 551 U.S. 338, 2 346-56 (2007) (upholding permissibility of presumption of reasonableness for within guidelines sentence). Hernandez argues that the district court failed to adequately explain the chosen sentence. In United States v. Carter, 564 F.3d 325 (4th Cir. 2009), this court reaffirmed that a district court must conduct an "individualized assessment" of the particular facts of every sentence, whether the court imposes a sentence above, below, or within the guidelines range. Id. at 330. While "[t]his individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review." omitted). In Id. (internal quotation marks and citation "[w]here [the parties] present[] addition, nonfrivolous reasons for imposing a . . . sentence [outside the advisory guidelines range,] . . . a district judge should address the party's arguments and explain why he has rejected those arguments." Id. at 328 (internal quotation marks and citation omitted). We have thoroughly reviewed the record and conclude that the district its court provided at the an high adequate end of statement the of reasons for sentence advisory guidelines range. its rejection of Moreover, we find that the court explained Hernandez's nonfrivolous arguments for a sentence at the bottom of the guidelines range and responded to 3 Hernandez's various requests and, therefore, we also find that the sentence is procedurally reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 4

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