US v. Ezau Yanez-Hernandez, No. 09-4709 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4709 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EZAU YANEZ-HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:08-cr-00106-D-1) Submitted: February 18, 2011 Decided: March 15, 2011 Before DUNCAN, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ezau Yanez-Hernandez appeals the 156-month sentence he received after distribute pleading cocaine, guilty in to possession violation of 21 with U.S.C. intent to § 841(a)(1) (2006), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006). On appeal, Yanez-Hernandez argues that the district court violated his Fifth Amendment rights by considering his failure to cooperate with investigators in determining his sentence. He also contends that the sentence was greater than necessary under 18 U.S.C. § 3553(a) (2006). Because Amendment claim We affirm. Yanez-Hernandez in the district did not court, raise we his review Fifth for plain error. United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). To establish plain error, the appealing party must show that an error obvious), Even and when exercise (1) a (3) was affects defendant [our] made, is substantial meets discretion (2) to these plain the clear or Id. at 577. criteria, we may rights. three correct (i.e., error only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotation marks district court omitted). As violated his support Fifth for his claim Amendment that rights 2 at the sentencing, Yanez- Hernandez (1999). relies on Mitchell v. United States, 526 U.S. 314 We conclude, however, that Yanez-Hernandez s reliance on Mitchell is misplaced. Instead, it appears that neither the Supreme Court nor this court has addressed the Fifth Amendment issue Yanez-Hernandez reached different raises, and other Thus, conclusions. circuit in courts the absence have of mandatory authority to the contrary, Yanez-Hernandez cannot show that any error was plain. See Lynn, 592 F.3d at 577; United States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) ( An error is clear or obvious when the settled law of the Supreme Court or this circuit establishes that an error has occurred. ). Yanez-Hernandez excessive. district Appellate courts for discretion standard. also argues courts that review reasonableness, his sentence sentences applying was imposed an by abuse of Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, a district court must properly calculate the Guidelines range, treat the Guidelines as advisory, consider the § 3553(a) reasons for selecting a sentence. presume that a sentence factors, explain Pauley, 511 F.3d at 473. within Guidelines range is reasonable. and the properly its We calculated United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 551 U.S. 338, 347 (2007) (upholding application of rebuttable 3 presumption of Yanez-Hernandez correctness has failed of to within-Guidelines show sentence). unreasonableness in the district court s determination that aggravating circumstances, such as the quantity of drugs and scope of the enterprise, outweighed the factors offered in mitigation. 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 the court and argument would not aid the decisional process. AFFIRMED 4
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