US v. Efren Perez-Roblero


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:15-cr-00216-FL-1 Copies to all parties and the district court/agency. [999950456].. [16-4028]

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Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4028 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EFREN PEREZ-ROBLERO, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:15-cr-00216-FL-1) Submitted: September 9, 2016 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: Judges, and October 19, 2016 HAMILTON, Senior Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Barbara D. Kocher, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 2 of 7 PER CURIAM: Efren Perez-Roblero appeals his above-Guidelines sentence of 18 months’ imprisonment following his plea of guilty to unlawfully reentering the United States after previously having been removed, in violation of 8 U.S.C. § 1326(a) (2012). Perez argues that the district court failed to resolve disputed issues of fact as required by Fed. R. Crim. P. 32(i)(3)(B) and that his sentence is both procedurally and substantively unreasonable. In reviewing an appellant’s procedural challenge to his sentence, we review for plain error if the defendant did not argue for a sentence different than the one imposed. States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. United 2010). To prevail under this standard, an appellant must establish that a clear or obvious error substantial rights. 734 (1993). procedural by the district court affected his United States v. Olano, 507 U.S. 725, 732, However, if a party asserts on appeal a claim of sentencing error that it preserved before the district court, we review for an abuse of discretion and will reverse unless we conclude that the error was harmless. Lynn, 592 F.3d at 576. We review “under a United States, the substantive deferential 552 abuse-of-discretion reasonableness abuse-of-discretion U.S. 38, standard 41, 51 applies 2 a standard.” (2007). to of any A sentence Gall v. “deferential sentence, whether Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 3 of 7 inside, just outside, or significantly outside the Guidelines range.” United States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir. 2012) (internal quotation marks omitted). reviewing a variance, we must sentencing court’s decision. give due Thus, in deference to the United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011) (citing Gall, 552 U.S. at 51). In reviewing district court a sentence, did not we must commit any first ensure “significant that the procedural error,” such as failing to properly calculate the applicable Guidelines range, “failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous failing to adequately explain the chosen sentence.” U.S. at 51. facts, or Gall, 552 The district court “must place on the record an individualized assessment based on the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). If we find a sentence procedurally reasonable, we must then examine its substantive reasonableness, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. Where, as here, the district court imposes a sentence that falls outside the applicable sentencing decision to court Guidelines acted impose such range, reasonably a we consider both sentence and with with “whether respect to its respect to the extent of the divergence from the sentencing range.” 3 the United Appeal: 16-4028 Doc: 29 States v. Filed: 10/19/2016 Washington, 743 Pg: 4 of 7 F.3d 938, (internal quotation marks omitted). 944 (4th Cir. 2014) The district court “has flexibility in fashioning a sentence outside of the Guidelines range,” and need only “set forth enough to satisfy the appellate court that it has considered the parties’ arguments and has a reasoned basis” for its decision. 364 (alterations Nevertheless, advisory “[t]he guideline scrutinize and the internal farther range,” reasoning support of the sentence.” the the offered Diosdado-Star, 630 F.3d at quotation court more by marks diverges we the must district omitted). from the “carefully court in United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006) (internal quotation marks omitted). We will affirm if “the § 3553(a) factors, on the whole, justified the sentence” imposed. Diosdado-Star, 630 F.3d at 367 (internal quotation marks omitted). We review the sentencing court’s factual findings for clear error. United States v. Flores-Alvarado, 779 F.3d 250, 254 (4th Cir. 2015). “Accordingly, if the district court makes adequate findings as to a controverted sentencing matter, this court must affirm those findings unless they are clearly erroneous.” (alterations and internal quotation marks omitted). Id. “However, the review process cannot take place without the district court first resolving all the disputed matters upon which it relies at sentencing.” Id. at 254-55 (internal quotation marks omitted). 4 Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 5 of 7 If the sentencing court failed “to resolve a disputed factual matter on which it necessarily relied at sentencing, this court must vacate the sentence and remand for resentencing.” United States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991). Rule 32(i)(3)(A) of the Federal Rules of Criminal Procedure permits a district court to “accept any undisputed portion of the presentence report as a finding of fact.” 32(i)(3)(A). Fed. R. Crim. P. When a defendant disputes the facts contained in a presentence report, “[a] mere objection to the finding in the presentence report is not sufficient.” 916 F.2d 157, 162 (4th Cir. 1990). United States v. Terry, Instead, “[t]he defendant has an affirmative duty to make a showing that the information in the presentence reasons why inaccurate.” defendant is unreliable, The burden is on the defendant, and if the is “an inaccurate, affirmative the court is are showing free to untrue the Id. make therein articulate facts to contained and the fails information report or [that] the adopt the findings of the presentence report without more specific inquiry or explanation.” Id. (alteration and internal quotation marks omitted); see United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (finding that the defendant’s objection to the presentence report’s determination of drug quantity was insufficient to render the district court’s adoption of the presentence report 5 Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 6 of 7 erroneous in the absence of evidence contradicting the report’s conclusions). Pursuant to Rule 32(i)(3)(B), a district court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). The rule “clearly requires the district court to make a finding with respect to each objection a defendant raises to facts contained in a presentence report before it may rely on the disputed fact in sentencing.” Morgan, 942 F.2d at 245 (considering 32(i)(3)(B)’s predecessor, Rule 32(c)(3)(D)). Rule The purpose of the rule “is to ensure that a record is made as to how the district court ruled on any alleged inaccuracy in the [presentence report].” United States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994). Thus, the district court may make the required finding by “expressly adopt[ing] findings contained in the presentence report.” at 245. The court may adopt “the the recommended Morgan, 942 F.2d [presentence report]’s findings in toto” if “the context of the ruling makes clear that the district court intended by the adoption to rule on each of the alleged factual inaccuracies.” Walker, (brackets and internal quotation marks omitted). 6 29 F.3d at 911 Appeal: 16-4028 Doc: 29 Filed: 10/19/2016 Pg: 7 of 7 We have reviewed the parties’ briefs and the record in this matter and conclude that the district court’s imposition of an 18-month variant sentence was erroneous and unreasonable. See United States v. Atencio, 476 F.3d 1099, 1107 (10th Cir. 2007) (finding that the district court plainly erred in imposing a variant sentence following its adoption of a presentence report containing grounds by contradictory Irizarry v. facts), United overruled States, in 553 part U.S. on 708 other (2008). Accordingly, we vacate Perez-Roblero’s sentence and remand for further proceedings in accordance with Fed. R. Crim. P. 32(i) and Gall. VACATED AND REMANDED 7

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