US v. Juan Acevedo-Herrera, No. 12-4758 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4758 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JUAN ANTONIO ACEVEDO-HERRERA, a/k/a Luis Rivera, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:11-cr-00062-H-1) Submitted: March 28, 2013 Decided: April 1, 2013 Before NIEMEYER, KING, and KEENAN, 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 Affirmed by unpublished per curiam opinion.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, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Juan Antonio Acevedo-Herrera pleaded guilty to one count of illegal reentry by an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to seventy months imprisonment. He appeals, challenging his sentence, alleging that the district court erred in denying his request for a downward variance substantively unreasonable. This applying an court abuse and the sentence is Finding no error, we affirm. reviews of contending a sentence discretion States, 552 U.S. 38, 51 (2007). for standard. reasonableness, Gall v. United We first review for significant procedural errors, including whether the district court failed to calculate or improperly calculated the Sentencing Guidelines range, treated the Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) (2006) factors, or failed to adequately explain its chosen sentence. the district court must Id. make an To avoid procedural error, individualized assessment, wherein it applies the relevant § 3553(a) factors to the facts of the case before it. 328 (4th Cir. 2009). nonfrivolous United States v. Carter, 564 F.3d 325, The district court also should address any arguments for an out-of-Guidelines explain why it rejected those arguments. sentence procedurally reasonable, we then Id. sentence and If we find the examine substantive reasonableness, considering the totality of the circumstances. 2 Gall, 552 U.S. at 51. range, this court If the sentence is within the Guidelines applies a presumption of reasonableness. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). We find that Acevedo-Herrera s procedurally and substantively reasonable. sentence is both The district court responded to defense counsel s arguments for a below-Guidelines sentence meaningfully and with specificity, and explained its chosen sentence. Furthermore, Acevedo-Herrera 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 3