US v. Leopoldo Ortiz-Velasco
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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“Where
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the
defendant
or
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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
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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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