US v. Jose Landa-Ortiz, No. 11-4508 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4508 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE LANDA-ORTIZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:10-cr-00267-D-1) Submitted: February 9, 2012 Decided: February 13, 2012 Before WILKINSON, AGEE, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Leza L. Driscoll, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Landa-Ortiz appeals his thirty-month sentence for possession violation of of contraband 18 U.S.C. in prison, §§ 1791(a)(2), to wit, a (b)(3). shank, in (2006). On appeal, Landa-Ortiz contends that the district court imposed an unreasonable sentence by failing to adequately take into account his physical condition administrative and punishment the fact prior to that he was to Finding sentencing. subject no error, we affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the sentence for significant procedural error, including [(2006)] failing factors, to consider selecting the a [18 sentence U.S.C.] 3553(a) on based § clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. We then consider the substantive reasonableness of the sentence imposed. Id. will a properly reasonable. United presume calculated on appeal advisory that a Guidelines sentence range is within We States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within-Guidelines sentence). 2 Landa-Ortiz, who suffers from several chronic medical conditions, requested a departure pursuant to the policy statement in § 5H1.4 of the U.S. Sentencing Guidelines Manual (2010) ( USSG ). Landa-Ortiz contends the district court failed to adequately justify its conclusion that the Bureau of Prisons would be able to treat his medical conditions. We lack the authority to review a sentencing court s denial of a downward departure unless the court failed to understand its authority to do so. 2008). United States v. Brewer, 520 F.3d 367, 371 (4th Cir. In this case, the district court clearly recognized its discretion to depart. Thus, its decision to deny the departure is not reviewable on appeal. Landa-Ortiz also requested a variant sentence based on his eight-month term in solitary confinement, which he claimed the Guidelines do not adequately address. The district court denied this request, citing the serious nature of the offense and the need to promote respect for the law and to deter other potential conclude offenders. that the Our district review sentencing determinations procedural error. of court and the sufficiently imposed Landa-Ortiz record fails a to leads us explained sentence establish free that to its of his sentence is excessive in light of the § 3553(a) factors and thus fails to rebut the presumption 3 of substantive reasonableness accorded to a within-Guidelines sentence. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Accordingly, dispense with oral we affirm argument Landa-Ortiz s because the sentence. 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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