US v. Isidro Escalante-Rivera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00163-REP-1. Copies to all parties and the district court. [999696250]. [15-4229]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4229

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISIDRO
ESCALANTE-RIVERA,
a/k/a
Jose
Flores-Casares, a/k/a Jose Fernando Melgar-Melgar,

Fernando

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:14-cr-00163-REP-1)

Submitted:

October 23, 2015

Decided:

November 10, 2015

Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Mary E.
Maguire, Assistant Federal Public Defender, Nicholas J. Xenakis,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Isidro Escalante-Rivera appeals his sentence of 21 months
of imprisonment, imposed following his guilty plea to illegally
reentering

the

United

States

after

a

felony

conviction,

violation of 8 U.S.C. § 1326(a), (b)(1) (2012).
Escalante-Rivera
significant

argues

that

procedural

the

error

district

in

in

On appeal,

court

committed

to

consider

refusing

Escalante-Rivera’s fear of returning to Honduras as a basis for
a downward variance.
In

reviewing

a

After careful review, we affirm.
sentence

for

deferential

abuse-of-discretion

States,

U.S.

552

district

court

38,

51

committed

standard.

(2007).
no

reasonableness,

We

we

Gall

must

“significant

apply

v.

ensure

procedural

a

United

that

the

error,”

including insufficient consideration of the 18 U.S.C. § 3553(a)
(2012)

factors

imposed.

or

inadequate

explanation

of

the

sentence

United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010) (internal quotation marks omitted).

In its explanation,

the

tick

district

court

need

not

robotically

through

every

§ 3553(a) factor on the record, particularly when its sentence
is

within

the

properly

calculated

Guidelines

range.

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
same

time,

the

district

court

“must

assessment based on the facts presented.”

2

make

an

United
At the

individualized

Gall, 552 U.S. at 50.

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making

that

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assessment,

“‘[n]o

limitation

[may]

be

placed on the information concerning the background, character,
and conduct’ of a defendant that a district court may ‘receive
and

consider

sentence.’”

for

the

Pepper

v.

purpose
United

of

imposing

States,

562

(2011) (quoting 18 U.S.C. § 3661 (2012)).

an

U.S.

appropriate
476,

490-91

In light of “the

broad language of § 3661,” the Supreme Court has warned that
courts have no “basis . . . to invent a blanket prohibition
against considering certain types of evidence at sentencing.”
Id. at 491 (internal quotation mark omitted).
We perceive no procedural error in the district court’s
consideration
variance

based

distinct

from

of

Escalante-Rivera’s

on

his

fear

“invent[ing]

request

of

living

a

blanket

in

for

a

downward

Honduras.

prohibition

Quite
against

considering” that evidence, the district court, in the exercise
of

its

considerable

sentencing

discretion,

merely

found

this fear was “not a basis for justifying a variance.”

that

Nor was

the court’s comment regarding Escalante-Rivera’s residence with
his aunt clearly erroneous.
Therefore,
argument,

and

reasonable.
judgment.
legal

we
we

are

unpersuaded

conclude

Accordingly,

that
we

by

his

Escalante-Rivera’s

sentence

affirm

the

is

sole

procedurally

district

court’s

We dispense with oral argument because the facts and

contentions

are

adequately
3

presented

in

the

materials

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before

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this

court

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and

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argument

would

not

aid

the

decisional

process.

AFFIRMED

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