United States v. Hernandez

416 F. App'x 303

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 11, 2011
• Docket: 10-4437
• Status: Unpublished

Opinion

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 8 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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, — U.S.-, 130 S.Ct. 290, 175 L.Ed.2d 194 (2009). In so doing, we first examine the sentence for “significant procedural error,” including “failing to calculate (or improperly calculating) the [guidelines range, treating the [guidelines 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, 128 S.Ct. 586.

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, 128 S.Ct. 586). If the sentence is within the guidelines range, we apply a presumption of reasonableness. United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United States, 551 U.S. 338, 346-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (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.