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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
3
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