United States v. Efren Perez-Roblero , 663 F. App'x 283 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EFREN PEREZ-ROBLERO,
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-00216-FL-1)
Submitted: September 9, 2016 Decided: October 19, 2016
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Jennifer C.
Leisten, Research & Writing Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Efren Perez-Roblero appeals his above-Guidelines sentence
of 18 months’ imprisonment following his plea of guilty to
unlawfully reentering the United States after previously having
been removed, in violation of 8 U.S.C. § 1326(a) (2012). Perez
argues that the district court failed to resolve disputed issues
of fact as required by Fed. R. Crim. P. 32(i)(3)(B) and that his
sentence is both procedurally and substantively unreasonable.
In reviewing an appellant’s procedural challenge to his
sentence, we review for plain error if the defendant did not
argue for a sentence different than the one imposed. United
States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). To
prevail under this standard, an appellant must establish that a
clear or obvious error by the district court affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732,
734 (1993). However, if a party asserts on appeal a claim of
procedural sentencing error that it preserved before the
district court, we review for an abuse of discretion and will
reverse unless we conclude that the error was harmless. Lynn,
592 F.3d at 576.
We review the substantive reasonableness of a sentence
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41, 51 (2007). A “deferential
abuse-of-discretion standard applies to any sentence, whether
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inside, just outside, or significantly outside the Guidelines
range.” United States v. Rivera-Santana, 668 F.3d 95, 100-01
(4th Cir. 2012) (internal quotation marks omitted). Thus, in
reviewing a variance, we must give due deference to the
sentencing court’s decision. United States v. Diosdado-Star,
630 F.3d 359, 366 (4th Cir. 2011) (citing Gall, 552 U.S. at 51).
In reviewing a sentence, we must first ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range, “failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. The district court “must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted).
If we find a sentence procedurally reasonable, we must then
examine its substantive reasonableness, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51. Where, as
here, the district court imposes a sentence that falls outside
the applicable Guidelines range, we consider “whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
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States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014)
(internal quotation marks omitted). 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. Diosdado-Star, 630 F.3d at
364 (alterations and internal quotation marks omitted).
Nevertheless, “[t]he farther the court diverges from the
advisory guideline range,” the more we must “carefully
scrutinize the reasoning offered by the district court in
support of the sentence.” United States v. Hampton, 441 F.3d
284, 288 (4th Cir. 2006) (internal quotation marks omitted). We
will affirm if “the § 3553(a) factors, on the whole, justified
the sentence” imposed. Diosdado-Star, 630 F.3d at 367 (internal
quotation marks omitted).
We review the sentencing court’s factual findings for clear
error. United States v. Flores-Alvarado, 779 F.3d 250, 254 (4th
Cir. 2015). “Accordingly, if the district court makes adequate
findings as to a controverted sentencing matter, this court must
affirm those findings unless they are clearly erroneous.” Id.
(alterations and internal quotation marks omitted). “However,
the review process cannot take place without the district court
first resolving all the disputed matters upon which it relies at
sentencing.” Id. at 254-55 (internal quotation marks omitted).
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If the sentencing court failed “to resolve a disputed factual
matter on which it necessarily relied at sentencing, this court
must vacate the sentence and remand for resentencing.” United
States v. Morgan, 942 F.2d 243, 245 (4th Cir. 1991).
Rule 32(i)(3)(A) of the Federal Rules of Criminal Procedure
permits a district court to “accept any undisputed portion of
the presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A). When a defendant disputes the facts contained in a
presentence report, “[a] mere objection to the finding in the
presentence report is not sufficient.” United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990). Instead, “[t]he defendant
has an affirmative duty to make a showing that the information
in the presentence report is unreliable, and articulate the
reasons why the facts contained therein are untrue or
inaccurate.” Id. The burden is on the defendant, and if the
defendant fails to make “an affirmative showing [that] the
information is inaccurate, the court is free to adopt the
findings of the presentence report without more specific inquiry
or explanation.” Id. (alteration and internal quotation marks
omitted); see United States v. Love, 134 F.3d 595, 606 (4th Cir.
1998) (finding that the defendant’s objection to the presentence
report’s determination of drug quantity was insufficient to
render the district court’s adoption of the presentence report
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erroneous in the absence of evidence contradicting the report’s
conclusions).
Pursuant to Rule 32(i)(3)(B), a district court “must — for
any disputed portion of the presentence report or other
controverted matter — rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing.” Fed. R. Crim. P. 32(i)(3)(B). The rule “clearly
requires the district court to make a finding with respect to
each objection a defendant raises to facts contained in a
presentence report before it may rely on the disputed fact in
sentencing.” Morgan, 942 F.2d at 245 (considering Rule
32(i)(3)(B)’s predecessor, Rule 32(c)(3)(D)). The purpose of
the rule “is to ensure that a record is made as to how the
district court ruled on any alleged inaccuracy in the
[presentence report].” United States v. Walker, 29 F.3d 908,
911 (4th Cir. 1994). Thus, the district court may make the
required finding by “expressly adopt[ing] the recommended
findings contained in the presentence report.” Morgan, 942 F.2d
at 245. The court may adopt “the [presentence report]’s
findings in toto” if “the context of the ruling makes clear that
the district court intended by the adoption to rule on each of
the alleged factual inaccuracies.” Walker, 29 F.3d at 911
(brackets and internal quotation marks omitted).
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We have reviewed the parties’ briefs and the record in this
matter and conclude that the district court’s imposition of an
18-month variant sentence was erroneous and unreasonable. See
United States v. Atencio, 476 F.3d 1099, 1107 (10th Cir. 2007)
(finding that the district court plainly erred in imposing a
variant sentence following its adoption of a presentence report
containing contradictory facts), overruled in part on other
grounds by Irizarry v. United States, 553 U.S. 708 (2008).
Accordingly, we vacate Perez-Roblero’s sentence and remand for
further proceedings in accordance with Fed. R. Crim. P. 32(i)
and Gall.
VACATED AND REMANDED
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