US v. Mario Martinez-Intreriano, No. 10-4246 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4246 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO DE JESUS Contreras, MARTINEZ-INTRERIANO, Defendant - a/k/a Jose Carranza- Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:09-cr-00266-BO-1) Submitted: December 15, 2010 Decided: January 13, 2011 Before SHEDD, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven A. Feldman, FELDMAN & FELDMAN, Uniondale, New York, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Sebastian Kielmanovich, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mario de Jesus Martinez-Intreriano pleaded guilty to illegally reentering the country after having been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced Martinez-Intreriano to fifty-seven months of imprisonment and he now appeals. For the reasons that follow, we affirm. Martinez-Intreriano argues that the district court erred in failing to adequately explain the chosen sentence. We review of a sentence for reasonableness, applying an abuse Gall v. United States, 552 U.S. 38, 51 discretion standard. (2007); see also 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 failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting failing Gall, to 552 a sentence adequately U.S. reasonableness at of based explain 51. the on We clearly the then sentence chosen erroneous sentence consider imposed. the United facts, or . . . . substantive States v. Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 129 S. Ct. 476 (2008). within the guidelines range, then 2 we apply If the sentence is a presumption of reasonableness. (2007) Rita v. United States, 551 U.S. 338, 346-59 (upholding presumption of reasonableness for within-guidelines sentence). We have held that a district court must conduct an individualized assessment of the particular facts of every sentence, whether the court imposes a sentence above, below, or within the guidelines range. 325, 330 (4th Cir. United States v. Carter, 564 F.3d 2009). While [t]his individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review. Id. at 330 (internal quotation marks and citation omitted). In addition, [w]here [the reasons imposing a range,] . . . parties] . . . a present[] sentence district nonfrivolous [outside judge the should advisory address for guidelines the party s arguments and explain why he has rejected those arguments. Id. at 328 (internal quotation marks and citation omitted). Moreover, [b]y drawing arguments from § 3553 for a sentence different than the one ultimately imposed, an aggrieved party sufficiently responsibility addressing those to alerts render arguments, the an and district court individualized thus preserves of its explanation its claim. United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). In order to preserve a claim, however, a defendant must argue for a 3 sentence different than that ultimately imposed. See id.; see also United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010) ( [A] defendant need only ask for a sentence outside the range calculated by the court prior to sentencing in order to preserve his claim for appellate review. ) (citation omitted). Where a defendant has failed to preserve the claim for appellate review, we review for plain error. Martinez-Intreriano argues that the district court failed to explain the within-guidelines sentence, and failed to respond to his nonfrivolous sentencing arguments. We agree. However, while Martinez-Intreriano argued factors in mitigation at sentencing, guidelines he range or never requested otherwise a sentence different imposed by the district court. than below the the sentence Therefore, we review this issue for plain error. To establish plain error, [Martinez-Intreriano] must show that an error occurred, that the error was plain, and that the error affected his substantial rights. Muhammad, 478 F.3d 247, 249 (4th Cir. United States v. 2007). Even if Martinez-Intreriano satisfies these requirements, correction of the error remains within our discretion, which we should not exercise fairness, . . . unless integrity proceedings. Id. or the error public (internal seriously reputation quotation 4 marks affect[s] the of judicial and citation omitted). that We have thoroughly reviewed the record and conclude Martinez-Intreriano has failed to demonstrate that the court s failure to adequately explain the chosen sentence was plain error. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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