US v. Moises Hernandez-Osorio

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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,

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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

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