United States v. Ruiz-Diaz , 204 F. App'x 274 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BUENERGE DE LA PAZ RUIZ-DIAZ, a/k/a Buenerge
de la Paz Diaz-Ruiz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00151-1BO)
Submitted: September 20, 2006 Decided: October 25, 2006
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Buenerge De La Paz Ruiz-Diaz, a native and citizen of El
Salvador, pled guilty to reentering the United States without
permission after having been convicted of an aggravated felony and
deported in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). The
district court sentenced Ruiz-Diaz at the low end of his advisory
guideline range to forty-six months in prison and two years of
supervised release. On appeal, he contends the court erred in
sentencing him to an unreasonably long sentence without considering
the factors under 18 U.S.C. § 3553(a) (2000). We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence may be unreasonable for both substantive and procedural
reasons. United States v. Moreland, 437 F.3d 424, 434 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006). A sentence within a properly
calculated advisory guideline range is presumptively reasonable.
United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). This presumption can only be rebutted by
showing the sentence is unreasonable when measured against the
factors under 18 U.S.C. § 3553(a) (2000). United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006), pet. for cert. filed,
___ U.S.L.W. ___ (July 21, 2006) (No. 06-5439).
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While a district court must consider the § 3553(a)
factors and explain its sentence, it need not explicitly reference
§ 3553 or discuss every factor on the record. United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). This is particularly
the case when the court imposes a sentence within the applicable
guideline range. Id. Moreover, a district court’s consideration
of pertinent factors may be implicit in its ultimate ruling. See
United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).
A district court’s explanation must be elaborate enough
to allow us to effectively review the reasonableness of a sentence.
Montes-Pineda, 445 F.3d at 380. The district court’s statements
should provide some indication that it considered the § 3553(a)
factors and the potentially meritorious arguments raised by both
parties at sentencing. Id. In determining whether a district
court considered the factors and whether it did so properly, we do
not evaluate the court’s statements in a vacuum but consider the
context surrounding those statements. Id. at 381.
At sentencing, Ruiz-Diaz requested a prison sentence
below his advisory range; a recommendation for designation either
at Butner in North Carolina or near Houston, Texas; and that no
fine be imposed. He argued his case was distinguishable from many
other illegal entry cases because of the political and living
conditions in his native country and the fact that he did not have
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an opportunity to take part in the fast-track program available in
other districts. He noted there was a civil war in his country
when he was a youth and he lived in a one-room hut with no
electricity. He requested that the district court take these facts
and circumstances into account when arriving at a just and fair
sentence. The Government contended that neither the disparity
resulting from the fast-track program nor any other factors
distinguished Ruiz-Diaz’s case from other illegal reentry cases or
provided a basis for a sentence below the advisory guideline range.
The district court granted Ruiz-Diaz’s requests for a
placement recommendation and that no fine be imposed and sentenced
him at the low end of his advisory guideline range. While the
court did not explicitly reference § 3553 or its factors at
sentencing, the court indicated in its written statement of reasons
that it found no reason to depart from the range. On appeal, Ruiz-
Diaz notes the district court failed to discuss the two main
factors he identified in support of a sentence below his advisory
range, namely, the much lower sentences that fast-track defendants
were receiving and his own personal history and circumstances, or
to provide any reasons for the sentence. Thus, he contends it was
unreasonable both in its length and the manner it was imposed.
We conclude Ruiz-Diaz has failed to rebut the presumption
that his sentence is reasonable when measured against § 3553(a)
factors. As we have recently ruled, sentencing disparities between
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those defendants receiving and those not receiving fast-track
downward departures are “warranted” as a matter of law and do not
justify imposition of a below-guidelines variance sentence. United
States v. Perez-Pena, 453 F.3d 236, 243, 245 (4th Cir. 2006).
Moreover, “[t]he reentry of an ex-felon is a serious offense for
which Congress has seen fit to impose a statutory maximum sentence
of 20 years,” Montes-Pineda, 445 F.3d at 379, and Ruiz-Diaz has not
shown that his history and characteristics made him “significantly
more deserving of a lower sentence than the typical defendant whose
illegal reentry crime produced the [forty-six to fifty-seven month]
guideline range.” Perez-Pena, 453 F.3d at 245.
We further conclude the district court’s failure to
reference § 3553 or explicitly state its reasoning at sentencing
did not render the sentence unreasonable in this case. It is
evident from a review of the record and the court’s ultimate
sentence that it considered pertinent factors and the potentially
meritorious arguments raised by both parties at sentencing.
Moreover, the court’s statements at sentencing and in its written
statement of reasons were elaborate enough for us to effectively
review the reasonableness of Ruiz-Diaz’s sentence.
Accordingly, we affirm Ruiz-Diaz’s conviction and
sentence. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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