US v. Fernando Garcia-Rodriguez, No. 12-4472 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4472 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FERNANDO GARCIA-RODRIGUEZ, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00382-CCE-1) Submitted: January 29, 2013 Decided: March 12, 2013 Before GREGORY, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas H. Johnson, Jr., GRAY & JOHNSON, LLP, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, JoAnna G. McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fernando Garcia-Rodriguez pleaded guilty, pursuant to a written plea agreement, to illegal reentry after removal based on a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced Garcia-Rodriguez months appeal, to fifty-seven Garcia-Rodriguez asserts that imprisonment. his On sentence was unreasonable because the district court declined to impose a lower sentence. We deferential States, We affirm. review Garcia-Rodriguez s abuse-of-discretion 552 U.S. consideration of 38, both 51 correctly This under v. review and a United requires substantive Id.; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). court Gall procedural reasonableness of the sentence. district standard. (2007). the sentence After determining whether the calculated the advisory Guidelines range, we must decide whether the court considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Once we have determined that the sentence is free of procedural error, we consider the substantive reasonableness of the sentence, tak[ing] into account 2 the totality of the circumstances. Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575. If the sentence is within the appropriate Guidelines range, we apply a presumption on appeal that the sentence is reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only if the defendant demonstrates that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 United States v. Montes-Pineda, (4th Cir. 2006) (internal quotation the extent that Garcia-Rodriguez court s denial of downward marks omitted). To district a challenges departure, a the district court s refusal to depart from the applicable Guidelines range does not provide a basis for appeal unless the court failed to understand its authority to do so. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Garcia-Rodriguez does not assert, and the record does not indicate, that court misunderstood its authority to depart. the district Accordingly, this claim is not reviewable on appeal. To the extent that Garcia-Rodriguez alleges that the district court erred in failing to grant a downward variance, we conclude that Garcia-Rodriguez s sentence is both procedurally and substantively reasonable. any specific confirms that procedural the Garcia-Rodriguez does not assert error, district and court 3 our review properly of the record considered the § 3553(a) factors, provided a detailed individualized assessment, responded to defense counsel s argument for a belowGuidelines sentence, and clearly explained the imposed sentence. Furthermore, Garcia-Rodriguez presents no evidence to rebut the presumption of reasonableness applicable to his within- Guidelines sentence. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4