US v. Leopoldo Ortiz-Velasco


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:15-cr-00078-F-1. Copies to all parties and the district court. [999997483]. [16-4252]

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Appeal: 16-4252 Doc: 29 Filed: 01/04/2017 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4252 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEOPOLDO ORTIZ-VELASCO, a/k/a Cesar Francisco Castillo, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:15-cr-00078-F-1) Submitted: December 16, 2016 Decided: January 4, 2017 Before MOTZ, DUNCAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten, Research and Writing Attorney, Raleigh, North Carolina, for Appellant. John Stuart Bruce, 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 Unpublished opinions are not binding precedent in this circuit.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: 16-4252 Doc: 29 Filed: 01/04/2017 Pg: 2 of 4 PER CURIAM: Leopoldo Ortiz-Velasco pled guilty to unlawful reentry after deportation following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a), sentenced to 24 months in prison. that his sentence unreasonable. We and was He now appeals, contending procedurally the reasonableness abuse-of-discretion States, 552 U.S. 38, 41 (2007). district (2012), and substantively We disagree. review deferential is (b)(2) court’s “fail[ure] to of a sentence standard.” Gall “under v. a United Procedural errors include the adequately explain the chosen sentence — including an explanation for any deviation from the [Sentencing] Guidelines range.” F.3d 325, omitted). [18 328 (4th Cir. United States v. Carter, 564 2009) (internal quotation marks Although the court need not “robotically tick through U.S.C.] § 3553(a)’s every subsection,” United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing,” Gall, 552 U.S. at 50. Even if the court imposes a within-Guidelines- range sentence, “it must place on the record an individualized assessment based on the particular facts of the case before it.” Carter, 564 F.3d at 330 (internal quotation marks omitted). 2 Appeal: 16-4252 Doc: 29 “Where Filed: 01/04/2017 the defendant or Pg: 3 of 4 prosecutor presents nonfrivolous reasons for imposing a different sentence than that set forth in the advisory Guidelines, a district [court] should address the party’s arguments arguments.” and Id. at explain 328 why (internal [it] has quotation rejected marks those omitted). While “[t]he context surrounding a district court’s explanation may imbue it with enough content for [us] to evaluate both whether the court considered the § 3553(a) factors and whether it did so properly,” United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006), we “may not guess at the district court’s rationale, searching the record for statements by the Government or defense counsel or for any other clues that might explain a sentence,” Carter, 564 F.3d at 329-30. Only if there are no significant procedural errors do we consider the substantive reasonableness of the sentence, taking into account “the totality of the circumstances.” U.S. at 51. calculated this We presume Guidelines presumption may that range be is a sentence within substantively rebutted only “by Gall, 552 a properly reasonable, showing that and the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). The record establishes that the district court considered and rejected Ortiz-Velasco’s arguments for a downward variance 3 Appeal: 16-4252 Doc: 29 Filed: 01/04/2017 Pg: 4 of 4 and sufficiently touched on the most relevant § 3553(a) factors in fashioning the chosen sentence. Thus, we conclude that the sentence reasonable. imposed was procedurally Additionally, having reviewed the record, we hold that Ortiz-Velasco has not made the showing necessary to rebut the presumption that his within-Guidelines-range sentence is substantively reasonable. Accordingly, we affirm the judgment of the district court. 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

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