United States v. Hernandez , 416 F. App'x 303 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4437
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MANUEL MANUEL HERNANDEZ, a/k/a Armando Quintero Fernandez,
a/k/a Pedro Macedo Brito, a/k/a Manuel Hernandez Fernandez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00198-NCT-1)
Submitted: January 26, 2011 Decided: March 11, 2011
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. John W. Stone, Jr., Acting United
States Attorney, Angela H. Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Manuel Manuel Hernandez pleaded guilty to illegally
reentering the country after having been deported following a
conviction for an aggravated felony, in violation of 18 U.S.C.
§ 1326(a), (b)(2) (2006). The district court sentenced
Hernandez to sixty-four months of imprisonment and he now
appeals. Finding no error, we affirm.
Hernandez argues that the sentence is substantively
unreasonable. We review a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d
330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the [g]uidelines range, treating the [g]uidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall, 552 U.S. at 51.
We then “‘consider the substantive reasonableness of
the sentence imposed.’” United States v. Evans, 526 F.3d 155,
161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51). If the
sentence is within the guidelines range, we apply a presumption
of reasonableness. United States v. Go, 517 F.3d 216, 218 (4th
2
Cir. 2008); see also Rita v. United States, 551 U.S. 338, 346-59
(2007) (upholding presumption of reasonableness for
within-guidelines sentence). “The fact that we might reasonably
conclude that a different sentence is appropriate is
insufficient to justify reversal of the district court.” Go,
517 F.3d at 218 (citation omitted). We have thoroughly reviewed
the record and conclude that Hernandez has failed to rebut the
presumption we accord on appeal to his within-guidelines
sentence.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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