US v. Gustavo Hernandez-Luna, No. 11-4214 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4214 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GUSTAVO HERNANDEZ-LUNA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (5:10-cr-00313-H-1) Submitted: November 8, 2011 Decided: December 14, 2011 Before NIEMEYER, KING, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gustavo Hernandez-Luna appeals from a sixty-month sentence imposed upon him pursuant to his guilty plea to illegal reentry by a convicted felon. The presentence report ( PSR ) recommended a base offense level of eight and a sixteen-level increase because Hernandez-Luna previously had been deported after sustaining a conviction for a crime of violence, namely aggravated assault. See U.S. Sentencing § 2L1.2 (2010) ( Section 2L1.2 ). variance sentence Guidelines 2L1.2 range and a unreasonably increased at months), his Manual Hernandez-Luna moved for a sentence (fifty-seven Guidelines the low arguing advisory end that range, of the Section failed to reflect the statutory sentencing factors, and did not exemplify the Sentencing Commission s exercise of its characteristic See Kimbrough v. United States, 552 U.S. institutional role. 85, 109-10 (2007) (holding that district courts are entitled to reject application of certain Guidelines based on disagreement with underlying policy). Luna s criminal request, reasoning record, Hernandez-Luna The district court denied Hernandez- the argues that, given enhancement on appeal that the was his procedurally and substantively unreasonable. 2 totality not of his unreasonable. sentence We affirm. is both We review a sentence imposed by the district court, whether inside, just outside, under a or significantly deferential outside Guidelines range, standard. Gall v. United States, 552 U.S. 38, 41 (2007). the abuse-of-discretion This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. In determining whether a Id. at 51. sentence is procedurally reasonable, we first assess whether the district court properly calculated the defendant s Guidelines range. Id. at 49, 51. We then consider whether the district court treated the Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors and any arguments presented by the parties, selected a sentence based on clearly erroneous facts, sufficiently the selected sentence. or failed assessment the district based on court the must facts explain Id. at 50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). sentence, to make When rendering a an presented, individualized United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted), and must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing, 50. the Gall, 552 U.S. at When imposing a sentence within the Guidelines, however, [district court s] explanation need not be elaborate or lengthy because [G]uidelines sentences themselves are in many 3 ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing policy. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation marks omitted). If the sentence is free of significant procedural error, we review the substantive reasonableness of the sentence, tak[ing] into account the totality of the circumstances. Gall, 552 U.S. at 51. If the sentence is within the appropriate Guidelines apply range, we sentence is reasonable. a presumption on appeal that the United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) (internal quotation marks omitted). Hernandez-Luna argues that his sentence is procedurally unreasonable because the district court failed to address his enhancement specific argument in and that of circumstances. Section itself, 2L1.2 without was an unreasonable application to his that the Hernandez-Luna contends district court only addressed whether the application of the Guidelines was characteristics reasonable and did not based address upon his his actual individual claim as to whether the Guideline was generally inappropriate as a policy 4 matter. Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence than that set forth in the advisory Guidelines, a district [court] should address the party s arguments and explain why [it] has rejected those arguments. We Carter, 564 F.3d at 328. conclude that considered Hernandez-Luna s individual characteristics. memorandum and heard indication that the the arguments The additional court district in court oral court the read context the of his Hernandez-Luna s argument. misunderstood properly There policy is no arguments being made or its discretion to impose a variance sentence on policy grounds. In fact, the district court stated that, had Hernandez-Luna s prior conviction been an aberration, the court might have Guidelines been more range was inclined too to agree harsh. See with him United that the States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (noting that district court s consideration of policy decisions underlying the Guidelines is part of the § 3553(a) analysis). 1 1 Hernandez-Luna argues without support on appeal that [t]he sixteen-level enhancement under § 2L1.2 is either a reasonable increase or it is not. . . . The reasonableness . . . does not depend upon the defendant to whom it is being applied. Appellant s Br. at 15. However, the district court is required to impose an individualized sentence based on individualized reasoning. Thus, the district court is free to find the Guideline appropriate is certain cases and not in others. See United States v. Mitchell, 624 F.3d 1023, 1028 (9th Cir. 2010) (Continued) 5 Accordingly, the court, as required, provided individualized reasoning for Hernandez-Luna s sentence and thus there was no procedural error. Hernandez-Luna also substantively unreasonable. argues that his sentence is Specifically, he contends that, as a result of the application of Section 2L1.2, his offense level and resulting Guidelines range overrepresented the seriousness of his criminal conduct and did not comport with § 3553(a) s overall goal that a sentence not be excessive. that the Guideline is arbitrary and was He also contends not adopted after careful consideration and research. Hernandez-Luna his fails to sixty-month overcome sentence the is appellate presumption that substantively reasonable. He has not demonstrated on appeal that the district court erred in its application of Section 2L1.2 and does not direct this court to any authority for the proposition that a proper application of unintended by Congress. this Guideline produces a sentence Further, his policy argument, even if accepted in other cases, would not require the district court to impose a sentence below the Guidelines range. See United (noting that sentencing judge is empowered to disagree with particular Guidelines when the circumstances in an individual case warrant ), cert. denied, 131 S. Ct. 1542 (2011). 6 States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007); see also United States v. Lopez, 650 F.3d 952, 967 (3d Cir. 2011) (rejecting similar Section 2L1.2 challenge and noting that, even where policy arguments have been found valid, rejection of Guidelines range is not required when court does not, in fact, have a disagreement with the Guideline at issue); United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (holding that Section procedures court 2L1.2 and at the policy sentence adopted pursuant challenge after where to the application usual district of § 3553 Hernandez-Luna s sentence was near the bottom of his presumptively conclude properly rejecting arrived factors). was reasonable that, Hernandez-Luna under fails Guidelines the to range. 2 totality establish of that Accordingly, the his we circumstances, sentence is substantively unreasonable. Because Hernandez-Luna fails to establish that the district court abused its discretion in imposing sentence, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately 2 Despite Hernandez-Luna s contention, a Guidelines range calculated under Section 2L1.2 is still presumptively reasonable. See Mondragon-Santiago, 564 F.3d at 366. 7 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8
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