US v. Byron Perez-Lopez, No. 09-4356 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4356 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BYRON ROCAEL PEREZ-LOPEZ, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 considering his arguments sentence, increasing and in substantive support his of sentence errors a within without by not guideline sufficient explanation, and failing to avoid sentencing disparities or a sentence greater than necessary to serve the sentencing set forth in 18 U.S.C. § 3553(a) (2006). purposes of We affirm. We review a sentence for reasonableness under an abuse of discretion standard. (2007). Gall v. United States, 552 U.S. 38, 51 This review requires appellate consideration of both the procedural Id. After and substantive determining reasonableness whether the district of a court sentence. properly calculated the defendant s advisory guidelines range, this court must consider § 3553(a) whether factors, the analyzed district any court arguments considered presented by parties, and sufficiently explained the selected sentence. the the Id.; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). 2 Finally, we sentence, review the taking into substantive account reasonableness the totality of of the 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. court was most concerned with the repetitive The district nature and circumstances of the offense, and specifically rejected PerezLopez claims that the guideline range provided satisfactory and 3 appropriate punishment that was sufficient but not more than necessary to punish the offense of conviction. variance sentence § 3553(a), that Perez-Lopez was the and required sentence others to satisfy imposed from was illegally It held that a the objectives necessary entering to the of deter 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. court did not commit On these facts, we find the district any significant procedural at 51. Further, based on the in See Gall, 552 explaining its reasons for the sentence chosen. U.S. error totality of the circumstances, including the Defendant s recidivism, and giving due deference § 3553(a) to factors, the variance, see on id., district a we whole, are court s justify convinced decision the that that extent the of sentence the the is substantively reasonable. We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 4
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