US v. Margarito Martinez-Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cr-00006-JPJ-PMS-1 Copies to all parties and the district court/agency. [999790507].. [15-4528]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4528

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARGARITO MARTINEZ-HERNANDEZ, a/k/a Carlanga,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:15-cr-00006-JPJ-PMS-1)

Submitted:

March 31, 2016

Decided:

April 7, 2016

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. John P. Fishwick, Jr., United States Attorney, C.
Patrick
Hogeboom,
III,
Assistant
United
States
Attorney,
Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Margarito

Martinez-Hernandez

appeals

from

his

54-month

sentence entered pursuant to his guilty plea to illegal reentry
by a felon.

He claims on appeal that his sentence, which was

within

Sentencing

the

unreasonable.

Guidelines

range,

is

substantively

We affirm.

Martinez-Hernandez

contends

that

his

sentence

is

unreasonably long given his criminal history and the fact that
the fast track program is not available in the Western District
of

Virginia.

Substantive

reasonableness

is

considering the totality of the circumstances.

determined

by

United States v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

We presume

that

calculated

a

sentence

imposed

within

the

properly

Guidelines range is substantively reasonable.

United States v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012).

This presumption

can only be rebutted if the defendant can demonstrate that the
sentence was unreasonable when measured against the 18 U.S.C.
§ 3553(a) (2012) factors.

United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006).
We find that Martinez-Hernandez has failed to rebut the
presumed

substantive

district

court

assessed

the

including

the

applicable

§

considered

and

reasonableness

rejected

of

totality
3553(a)

counsel’s
2

his
of

sentence.

the

factors,
arguments

The

circumstances,
and
for

explicitly
a

downward

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variance.

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In

rejecting

Martinez-Hernandez’s

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this

criminal

request,

history,

the

his

court

rapid

considered

reentry

into

the United States, and the need for deterrence.

In addition, we

have

argument.

rejected

Martinez-Hernandez’s

fast

track

See

United States v. Perez-Pena, 453 F.3d 236, 243 (4th Cir. 2006)
(determining
districts,

that

and

the

the

lack

of

fast

availability

in

track

others,

programs
did

not

in

some

cause

an

unwarranted sentencing disparity that would justify a variance
from an advisory Guidelines range).

In any event, the district

court considered whether such a variance was warranted in this
case and determined that it was not.
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

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