US v. Moises Hernandez-Osorio


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00054-F-1 Copies to all parties and the district court/agency. [999588715].. [14-4699]

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Appeal: 14-4699 Doc: 32 Filed: 05/22/2015 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4699 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MOISES HERNANDEZ-OSORIO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00054-F-1) Submitted: May 19, 2015 Before MOTZ and Circuit Judge. KING, Decided: Circuit Judges, and May 22, 2015 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 14-4699 Doc: 32 Filed: 05/22/2015 Pg: 2 of 3 PER CURIAM: Moises Hernandez-Osorio pled guilty to illegal reentry by an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). He Hernandez-Osorio was sentenced to 57 months in prison. now appeals, unreasonable. claiming that his sentence is substantively We affirm. We review Hernandez-Osorio’s sentence “under a deferential abuse-of-discretion standard.” U.S. 38, 41 (2007). reasonableness, See Gall v. United States, 552 When reviewing a sentence for substantive we “examine[] the totality of the circumstances,” United States v. Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010), and, if the sentence is within or below the properly calculated Guidelines range, we presume that the sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). This presumption is rebutted only if the defendant shows “that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) [(2012)] factors.” Hernandez-Osorio argues that afforded a sixteen-level Sentencing based on his this standard of within-Guidelines sentence should presumption of reasonableness enhancement he received Guidelines an disputes Id. Manual empirical study 2 the not because pursuant § 2L1.2(b)(1)(A) by review to (2013) Sentencing was and be the U.S. not Commission, Appeal: 14-4699 Doc: 32 Filed: 05/22/2015 Pg: 3 of 3 unfairly punishes defendants for conduct that is accounted for in their reflect criminal the risk history of scores, recidivism. and His such attacks in other not argument policy attack on USSG § 2L1.2(b)(1)(A). rejected does accurately amounts to a We have consistently cases. See, e.g., United States v. Martinez-Barrera, 539 F. App’x 266, 267-68 (4th Cir. 2013) (No. 13-4073), cert. denied, 134 S. Ct. 1330 (2014); United States v. Romero-Martinez, 500 F. App’x 215, 216 n.* (4th Cir. 2012) (No. 12-4333). We conclude that the sentence is substantively reasonable and that Hernandez-Osorio has failed to rebut the presumption of reasonableness accorded Accordingly, we affirm. his within-Guidelines sentence. 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

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