United States v. Perez-Lopez , 352 F. App'x 855 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4356
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON ROCAEL PEREZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00003-REP-1)
Submitted: November 17, 2009 Decided: November 20, 2009
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron Rocael Perez-Lopez pled guilty without a plea
agreement to illegal reentry after prior removal, in violation
of 8 U.S.C. § 1326(a) (2006). The district court determined
that Perez-Lopez had illegally reentered the United States four
times in less than a five-year period, and imposed a 16-month
sentence, a variance above the guideline range of 0-6 months.
Perez-Lopez appeals his sentence, contending that the district
court committed procedural and substantive errors by not
considering his arguments in support of a within guideline
sentence, increasing his sentence without sufficient
explanation, and failing to avoid sentencing disparities or a
sentence greater than necessary to serve the purposes of
sentencing set forth in 18 U.S.C. § 3553(a) (2006). We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id. After determining whether the district court properly
calculated the defendant’s advisory guidelines range, this court
must consider whether the district court considered the
§ 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.;
see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
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Finally, we review the substantive reasonableness of the
sentence, “taking into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (internal quotation marks and citation omitted).
Applying these standards, we have thoroughly reviewed the record
on appeal and conclude that the sentence was reasonable.
While the district court did not explicitly refer to
Perez-Lopez’ personal characteristics, family history, prior
criminal history, or work history at sentencing, we conclude
that the court did consider and “apply the relevant § 3553(a)
factors to the specific circumstances of the case before it.”
Carter, 564 F.3d at 328 (quoting Gall, 552 U.S. at 52). The
reasons articulated by the district court for a given sentence
need not be “couched in the precise language of § 3553(a),” so
long as the “reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007).
Here, the district court had before it the Defendant’s
written and oral arguments in support of leniency. The district
court was most concerned with the repetitive nature and
circumstances of the offense, and specifically rejected Perez-
Lopez’ claims that the guideline range provided satisfactory and
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appropriate punishment that was sufficient but not more than
necessary to punish the offense of conviction. It held that a
variance sentence was required to satisfy the objectives of
§ 3553(a), that the sentence imposed was necessary to deter
Perez-Lopez and others from illegally entering the United
States, and having previously been given lenient treatment, the
sentence was necessary to promote respect for the law and to
protect the citizens of the United States. The district court
also specifically considered and rejected the Defendant’s claim
of statistical disparity. On these facts, we find the district
court did not commit any “significant procedural error” in
explaining its reasons for the sentence chosen. See Gall, 552
U.S. at 51. Further, based on the totality of the
circumstances, including the Defendant’s recidivism, and giving
“due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance,” see id., we are convinced that the sentence is
substantively reasonable.
We therefore affirm the sentence imposed by 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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