US v. Efren Perez-Roblero

Filing

UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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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

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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

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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

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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