US v. Hector Ceron-Garcia, No. 10-4575 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4575 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR CERON-GARCIA, Defendant -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-00448-REP-1) Submitted: January 24, 2011 Decided: February 18, 2011 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Benjamin L. Hatch, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hector Arturo Ceron-Garcia appeals the within- Guidelines 108-month sentence imposed following his guilty plea to possession with intent to distribute 500 grams or more of methamphetamine, in violation (b)(1)(A)(viii) (2006). of 21 U.S.C. § 841(a)(1), On appeal, Ceron-Garcia contends that the district court imposed a substantively unreasonable sentence because it used the offense level determined by the weight of actual methamphetamine mixture. rather than the entire weight of the Finding no reversible error, we affirm. We review a sentence imposed by a district court under a deferential abuse of discretion States, 552 U.S. 38, 45 (2007). for significant procedural standard. Gall v. United First, we review the sentence error, examining the record for miscalculation of the Guidelines range, the treatment of the Guidelines as mandatory, failure to consider the § 3553(a) factors, the selection of a sentence based on clearly erroneous facts, and failure to adequately explain the chosen sentence and any deviation from the Guidelines. find no significant procedural Gall, 552 U.S. at 51. error, we substantive reasonableness of the sentence. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). next assess If we the United States v. If the sentence imposed is within the appropriate Guidelines range, we consider it presumptively reasonable. United States v. Mendoza-Mendoza, 2 597 F.3d 212, 216 (4th Cir. 2010). The presumption may be rebutted by a showing that the sentence is unreasonable when measured against Montes-Pineda, the 445 § 3553(a) F.3d 375, factors. 379 (4th United Cir. States 2006) v. (internal quotation marks omitted). Ceron-Garcia reasonableness of does his not sentence; challenge he merely the procedural argues that the district court erred when it declined to vary downward because the sentencing methamphetamine disparity mixture is for actual not based methamphetamine on empirical and data a and national experience, as he argues is required by Kimbrough v. United States, 552 U.S. 85, 109-10 (2007). did not require Guidelines. an empirical basis Kimbrough, however, for all Sentencing United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also United States v. Talamantes, 620 F.3d 901, 901 (8th Cir. 2010) (per curiam). While district courts certainly may disagree with the Guidelines for policy reasons and may adjust a sentence accordingly[,] . . . if they do not, [appellate courts] will not second-guess simply based. their because the decisions under particular a more Guideline is lenient not standard empirically- Mondragon-Santiago, 564 F.3d at 367. Thus, we Guidelines sentence. presume reasonable Ceron-Garcia s within- Because Ceron-Garcia fails to rebut the 3 presumption, we hold that the district court did not abuse its discretion in Accordingly, dispense we with sentencing affirm oral him the argument to 108 district because months court s the imprisonment. judgment. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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