US v. Luis Alejo-Vasquez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00230-WO-1 Copies to all parties and the district court/agency. [998702574].. [11-4374]

Appeal: 11-4374

Document: 23

Date Filed: 10/18/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4374

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS ALEJO-VASQUEZ,
Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:10-cr-00230-WO-1)

Submitted:

October 7, 2011

Decided:

October 18, 2011

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Harry L. Hobgood, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Luis Alejo-Vasquez (“Alejo”) pled guilty, pursuant to
a written plea agreement, to one count of illegal reentry of a
deported or removed alien after conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006).

The

presentence report (“PSR”) recommended a base offense level of
eight and a twelve-level increase because Alejo previously had
been deported after sustaining a conviction for a felony drug
trafficking

offense

for

which

he

received

imprisonment of thirteen months or less.

a

sentence

of

See U.S. Sentencing

Guidelines Manual (“USSG”) § 2L1.2(a), (b)(1)(B) (2010).

The

PSR also recommended a three-level reduction for acceptance of
responsibility, see USSG § 3E1.1, resulting in a total offense
level of seventeen.

Alejo’s criminal history was in Category

III, and the PSR accordingly calculated his Guideline range at
thirty

to

thirty-seven

months’

imprisonment.

Alejo

did

object to the PSR’s calculation of the Guidelines range.

not
The

district court adopted the PSR, calculated the Guidelines range
at thirty to thirty-seven months’ imprisonment, and sentenced
Alejo to thirty-three months’ imprisonment.
challenges

this

unreasonable.
This

sentence

as

procedurally

On appeal, Alejo
and

substantively

We affirm.
court

reviews

the

sentence

imposed

by

the

district court, “whether inside, just outside, or significantly
2

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outside

the

Date Filed: 10/18/2011

Guidelines

range,”

abuse-of-discretion standard.”
38, 41 (2007).
both

Page: 3 of 6

under

a

“deferential

Gall v. United States, 552 U.S.

This review entails appellate consideration of

the

procedural

sentence.

Id. at 51.
In

and

determining

substantive

whether

a

reasonableness

sentence

is

of

the

procedurally

reasonable, we first assess whether the district court properly
calculated the defendant’s Guidelines range.

Id. at 49, 51.

We

then consider whether the district court treated the Guidelines
as mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006)
factors and any arguments presented by the parties, selected a
sentence
explain

based

on

“clearly

sufficiently

the

erroneous

selected

facts,”

sentence.

or
Id.

failed
at

to

50-51;

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
“When

rendering

a

sentence,

the

district

court

must

make

an

individualized assessment based on the facts presented,” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation

marks

and

emphasis

omitted),

and

must

“adequately

explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing.”
552

U.S.

at

50.

“When

imposing

a

sentence

Gall,

within

the

Guidelines, however, the [district court’s] explanation need not
be

elaborate

themselves

are

or
in

lengthy
many

ways

because
tailored
3

[G]uidelines
to

the

sentences

individual

and

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reflect approximately two decades of close attention to federal
sentencing policy.”

United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010) (internal quotation marks omitted).
If

the

sentence

is

free

of

significant

procedural

error, we review the substantive reasonableness of the sentence,
“tak[ing]

into

account

Gall, 552 U.S. at 51.

the

totality

of

the

circumstances.”

If the sentence is within the appropriate

Guidelines range, this court applies a presumption on appeal
that

the

sentence

is

reasonable.

United

States

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

v.

Such a

presumption is rebutted only by showing “that the sentence is
unreasonable
United

when

States

v.

measured

against

Montes-Pineda,

445

the

§ 3553(a)

F.3d

375,

379

factors.”
(4th

Cir.

2006) (internal quotation marks omitted).
Alejo

argues

that

his

sentence

is

procedurally

unreasonable because the district court failed to address his
arguments for a sentence at the “low end” of the Guidelines
range and explain why it rejected those arguments.

After review

of the record, we conclude this contention is without merit.
sentencing,

Alejo

advanced

his

personal

circumstances

At

without

explaining why those circumstances merited a sentence at the low
end of the Guidelines.

The district court listened to Alejo’s

arguments, noted that the Guidelines range accounted for these
circumstances,

and

stated

that,
4

after

consideration

of

the

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Guidelines range and the § 3553(a) factors, a within-Guidelines
sentence

of

but

greater

not

sentencing.

thirty-three
than

months’

necessary,

imprisonment
to

achieve

was
the

sufficient,
purposes

of

We therefore conclude that Alejo fails to establish

procedural error by the district court.
Alejo also argues that the thirty-three-month sentence
is

substantively

unreasonable.

Specifically,

Alejo

contends

that, as a result of the application of USSG § 2L1.2(b)(1)(B),
his offense level and resulting Guidelines range overrepresented
the seriousness of his criminal conduct and that the Guidelines
treated him as if he had committed more serious offenses, a
treatment he asserts does not comport with § 3553(a)’s overall
goal that a sentence not be excessive.

Alejo further contends

that the thirty-three-month sentence is unreasonable in light of
his

struggles

with

drug

addition,

his

cooperation

with

immigration authorities, and his work and military history.
Alejo, however, has not demonstrated that the district
court erred in its application of USSG § 2L1.2 and does not
direct

us

application

to
of

any

authority

this

unintended by Congress.

establishing

Guideline

could

that

produce

a
a

proper
sentence

Further, Alejo fails to explain how his

personal characteristics render the within-Guidelines sentence
of thirty-three months’ imprisonment unreasonable when measured
against

the

§ 3553(a)

factors.
5

Accordingly,

he

fails

to

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overcome

the

Date Filed: 10/18/2011

appellate

presumption

Page: 6 of 6

that

his

within-Guidelines

sentence is substantively reasonable.
We
We dispense

therefore
with

oral

affirm

the

argument

district

because

the

court’s
facts

judgment.
and

legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

6