US v. Jose Cano-Martinez, No. 09-4360 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4360 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSE CANO-MARTINEZ, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cr-00452-HEH-1) Submitted: October 30, 2009 Decided: December 3, 2009 Before MICHAEL, DUNCAN, and AGEE, 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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: Jose agreement to Cano-Martinez one count of pled guilty reentry illegal without of an a plea aggravated felon, in violation of 8 U.S.C. § 1326 (2006), and was sentenced to 27 months in prison. is that the district Cano-Martinez s sole argument on appeal court s twenty-seven substantively unreasonable because greater necessary meet than to he the month asserts purposes sentence that of it is was sentencing. Finding no error, we affirm. After United States v. Booker, 543 U.S. 220 (2005), we review a sentence for reasonableness, and whether inside, just outside, or significantly outside the Guidelines range, this court applies a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 591 (2007). The court first must ensure that the district court committed no significant procedural error. if the sentence is procedurally Id. at 597. reasonable can this Only court evaluate the substantive reasonableness of the sentence, again using the abuse of discretion standard of review. Id.; United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In determining whether the district court committed any significant procedural error, this court looks to any failure in the calculation (or the improper calculation) of the Guidelines range, the treatment of the Guidelines as mandatory, the failure 2 to consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009) factors, the selection of a sentence using clearly erroneous facts, and any failure to adequately explain the chosen sentence, including any deviation from the advisory Guidelines range. Gall, 128 S. Ct. at 597. This court applies an appellate presumption of reasonableness to a within-Guidelines sentence. United See States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Nelson v. United States, 129 S. Ct. 890, 892 (2009) reasonableness (emphasizing accorded a that the presumption sentence within-Guidelines of an is appellate court presumption rather than a presumption enjoyed by a sentencing court). After reviewing the record and considering Cano-Martinez s arguments, we find that Cano-Martinez has not rebutted the presumption of reasonableness this court accords the district court s 491 F.3d at 193. judgment. legal before sentence. See Allen, Accordingly, we affirm the district court s We dispense with oral argument because the facts and contentions the within-Guidelines court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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