United States v. Isidro Escalante-Rivera

629 F. App'x 508

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 10, 2015
• Docket: 15-4229
• Status: Unpublished

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Isidro Escalante-Rivera appeals his sentence of 21 months of imprisonment, imposed following his guilty plea to illegally reentering the United States after a felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). On appeal, Esca-lante-Rivera argues that the district court committed significant procedural error in refusing to consider Escalante-Rivera’s fear of returning to Honduras as a basis for a downward variance. After careful review, we affirm.

In reviewing a sentence for reasonableness, we apply a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We must ensure that the district court committed no “significant procedural error,” including insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors or inadequate explanation of the sentence imposed. United States v. Lynn, 592 F.3d 572, 575 (4th Cir.2010) (internal quotation marks omitted). In its explanation, the district court need not robotically tick through every § 3553(a) factor on the record, particularly when its sentence is within the properly calculated Guidelines range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.2006). At the same time, the district court “must make an individualized assessment based on the facts presented.” Gall, 552 U.S. at 50, 128 S.Ct. 586.

In making that assessment, “ ‘[n]o limitation [may] be placed on the information concerning the background, character, and conduct’ of a defendant that a district court may ‘receive and consider for the purpose of imposing an appropriate sentence.’ ” Pepper v. United States, 562 U.S. 476, 490-91, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (quoting 18 U.S.C. § 3661 (2012)). In light of “the broad language of § 3661,” the Supreme Court has warned that courts have no “basis ... to invent a blanket prohibition against considering certain types of evidence at sentencing.” Id. at 491, 131 S.Ct. 1229 (internal quotation mark omitted).

We perceive no procedural error in the district court’s consideration of Escalante-Rivera’s request for a downward variance based on his fear of living in Honduras. Quite distinct from “invent[ing] a blanket prohibition against considering” that evidence, the district court, in the exercise of its considerable sentencing discretion, merely found that this fear was “not a basis for justifying a variance.” Nor was the court’s comment regarding Escalante-Rivera’s residence with his aunt clearly erroneous.

Therefore, we are unpersuaded by Es-ealante-Rivera’s sole argument, and we conclude that his sentence is proeedurally reasonable. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional pro' cess.

AFFIRMED,