United States v. David Campos-Palencia , 659 F. App'x 729 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID CAMPOS-PALENCIA, a/k/a Luis Daniel Leyva, Jr., a/k/a
Daniel David Gonzalez Palencia,
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-00174-FL-1)
Submitted: August 29, 2016 Decided: August 31, 2016
Before TRAXLER and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John S. Coalter, COALTER LAW P.L.L.C., Greensboro, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Campos-Palencia pled guilty to illegal reentry of a
previously deported alien subsequent to a felony conviction, in
violation of 8 U.S.C. § 1326(a), (b)(1) (2012). The district
court imposed an above-Guidelines sentence of 40 months’
imprisonment. On appeal, Campos-Palencia contends that his
sentence is procedurally and substantively unreasonable.
Finding no error, we affirm.
This court reviews any sentence, “whether inside, just
outside, or significantly outside the Guidelines range, under a
deferential abuse-of-discretion standard.” United States v.
King, 673 F.3d 274, 283 (4th Cir. 2012). The district court’s
factual findings are reviewed for clear error, and its legal
conclusions de novo. United States v. McGee, 736 F.3d 263, 271
(4th Cir. 2013).
In determining whether a sentence is procedurally
reasonable, the court considers whether the district court
properly calculated the applicable advisory Guidelines range,
gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,
relied on facts that were not clearly erroneous, and
sufficiently explained the selected sentence and any deviation
from the applicable Guidelines range. Gall v. United States,
552 U.S. 38, 49-51 (2007).
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If the sentence is procedurally reasonable, we evaluate its
substantive reasonableness, “tak[ing] into account the totality
of the circumstances, including the extent of any variance from
the Guidelines range.” Id. at 51. If the sentence is outside
the Guidelines range, we “consider the extent of the deviation
from the guidelines range, but must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” United States v.
Hargrove, 701 F.3d 156, 164 (4th Cir. 2012) (alterations
omitted).
Campos-Palencia claims that the district court violated
Fed. R. Crim. P. 32(i) when it relied on a disputed portion of
the presentence report without first ruling on the dispute. The
record reveals that Campos-Palencia failed to properly alert the
court to this objection. See Fed. R. Crim. P. 32(f). Further,
when Campos-Palencia belatedly referred to the disputed
information at the sentencing hearing, he failed to provide any
support for his argument. “A mere objection to the finding in
the presentence report is not sufficient. Without an
affirmative showing the information is inaccurate, the court is
free to adopt the findings of the presentence report without
more specific inquiry or explanation.” United States v. Love,
134 F.3d 595, 606 (4th Cir. 1998) (alterations and internal
quotation marks omitted). Therefore, we reject this argument.
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Campos-Palencia also claims that the district court failed
to provide individualized reasoning for his sentence. This
assertion is belied by the record, which demonstrates that the
district court considered several factors specific to Campos-
Palencia. Campos-Palencia attacks the significance or weight
the district court assigned to the various factors considered by
the court, but we conclude the court did not err.
Campos-Palencia next asserts that the district court erred
by citing only possession of firearms as the reason for the
upward variance on its Statement of Reasons form and by
disproportionately relying on his firearm possession to the
exclusion of other 18 U.S.C. § 3553(a) factors in its oral
explanation. We reject these arguments. At sentencing, the
district court expressly discussed several considerations.
While the district court may have accorded more significance to
the firearms, such a decision is within its discretion. United
States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011). Further,
we reject any claim that the court’s written statement of
reasons is insufficient.
Finally, Campos-Palencia broadly asserts that his sentence
is substantively unreasonable because the facts of his case do
not merit a sentence of 40 months’ imprisonment. In light of
Campos-Palencia’s failure to provide specific support for this
argument, the district court’s explanation of the sentence,
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including references to multiple § 3553(a) factors, and the
deference accorded to a district court’s sentence, we conclude
that this argument is without merit.
Accordingly, because we conclude that Campos-Palencia has
failed to demonstrate that his sentence is procedurally or
substantively unreasonable, we affirm the sentence. We dispense
with oral argument because the facts and legal contentions are
adequately expressed in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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