US v. Sergio Garza

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00076-BR-1. Copies to all parties and the district court. [999769866]. [15-4161]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4161

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO GARZA, a/k/a Anatolio Balderas-Sanchez,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:14-cr-00076-BR-1)

Submitted:

January 19, 2016

Decided:

March 8, 2016

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.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,
Eleanor
Morales,
Assistant
United
States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sergio
United

Garza

States

pleaded

after

guilty

having

to

been

illegally

removed

reentering

following

a

the

felony

conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012).
The

district

Guidelines
appeals.

court

range

to

sentenced
27

Garza

months

of

within

the

imprisonment

advisory

and

he

now

For the reasons that follow, we affirm the judgment.

On appeal, Garza challenges the procedural reasonableness
of

the

sentence.

applying
States,

an
552

abuse
U.S.

We

review

of

discretion

standard.

51

see

38,

a

sentence

(2007);

for

also

Layton, 564 F.3d 330, 335 (4th Cir. 2009).

reasonableness,
Gall

United

v.

United

States

v.

In so doing, we

first examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to

consider

selecting

the

a

[18

sentence

U.S.C.]
based

§

on

3553(a)

clearly

[(2012)]

erroneous

failing to adequately explain the chosen sentence.”
U.S.

at

51.

sentencing,

In
a

conducting

district

court

an

individualized

must

respond

to

factors,
facts,

Gall, 552

assessment
the

or

at

parties’

nonfrivolous arguments for imposing a sentence outside of the
Guidelines range.

See United States v. Carter, 564 F.3d 325,

328, 330 (4th Cir. 2009).

2

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We then “‘consider the substantive reasonableness of the
sentence imposed.’”

United States v. Evans, 526 F.3d 155, 161

(4th Cir. 2008) (quoting Gall, 552 U.S. at 51).

We will presume

on appeal that a sentence within a properly calculated advisory
Guidelines range is reasonable.

United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
U.S. 338, 346-56 (2007) (upholding presumption of reasonableness
for within-Guidelines sentence).
Garza argues that the district court erroneously determined
that it could not depart or vary from the Guidelines range based
on the unavailability of a fast track, or early disposition,
program.

Such

programs

provide

for

a

departure

in

illegal

reentry cases if the defendant admitted guilt in a timely manner
and the government, having determined that such a departure is
warranted,

moves

Guidelines

Manual

for

a

§ 5K3.1

departure.
(2015).

See

Here,

the

U.S.
court

Sentencing
erred

in

determining that an early disposition program was not available
in the district of the prosecution.

However, that error was

harmless as the Government did not move for a departure pursuant
to § 5K3.1 of the Guidelines.
could

not

conclude

have
that

departed
the

Without such a motion, the court

under

sentence

is

that

section.

Therefore,

we

procedurally

reasonable;

we

further conclude that the sentence is substantively reasonable.

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Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

4