US v. Noel Silva

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cr-00001-JPB-MJA-1 Copies to all parties and the district court/agency. [999976810].. [16-4265]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4265

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOEL BARRERA SILVA,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:15-cr-00001-JPB-MJA-1)

Submitted:

November 22, 2016

Before DIAZ and
Circuit Judge.

THACKER,

Circuit

Decided:

Judges,

November 29, 2016

and

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.

Linn Richard Walker, Senior Litigator, Kristen M. Leddy,
Research and Writing Specialist, Martinsburg, West Virginia, for
Appellant.
William J. Ihlenfeld, II, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Noel Barrera Silva appeals the 78-month, below-Guidelines
sentence imposed after he pled guilty to possession with intent
to

distribute

§ 841(a)(1)

methamphetamine,

(2012).

Silva

in

violation

argues

that

of

his

21

U.S.C.

sentence

is

unreasonable because the district court failed to consider all
of the 18 U.S.C. § 3553(a) (2012) factors, and “did not depart
low enough” from the Sentencing Guidelines.

Finding no error,

we affirm.
“In analyzing a sentence for substantive reasonableness, we
consider

the

standard,
reverse

a

sentence

whereby

we

sentence

under
must

only

a

deferential

defer

if

it

to
is

the

abuse-of-discretion

trial

court

unreasonable,

and

can

if

the

even

sentence would not have been the choice of the appellate court.”
United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013)
(internal

quotation

marks

omitted).

When

we

review

the

substantive reasonableness of a sentence, we “take into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.”
594

F.3d

omitted).

340,
We

346

(4th

apply

a

Cir.

2010)

presumption

United States v. Morace,
(internal
of

quotation

reasonableness

marks
to

a

sentence within or below a properly calculated Guidelines range.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

2

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We

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reject

sentence

was

Silva’s

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argument

substantively

that

his

unreasonable

below-Guidelines

and

necessary to achieve § 3553(a)’s purposes.

greater

than

After considering

the district court’s explanation for the chosen sentence and its
discussion of the § 3553(a) factors it deemed relevant, we find
that Silva

has

failed

to

rebut

the

appellate

presumption

of

reasonableness this court affords his below-Guidelines sentence.
See Susi, 674 F.3d at 289; see also United States v. DiosdadoStar, 630 F.3d 359, 364 (4th Cir. 2011) (recognizing that 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 (internal
quotation

marks

and

brackets

omitted));

United

States

v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006) (holding that, while
a district court must consider the statutory factors and explain
its

sentence,

it

need

not

explicitly

reference

discuss every single factor on the record).

§ 3553(a)

or

Accordingly, we

conclude that Silva’s sentence is substantively reasonable.
Based
judgment.
legal

on

the

foregoing,

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions

are

adequately

3

presented

in

the

materials

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this

court

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and

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argument

would

not

aid

the

decisional

process.

AFFIRMED

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