US v. Gerardo Hernandez, No. 13-4120 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4120 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GERARDO VILLALON HERNANDEZ, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:10-cr-00053-MR-1) Submitted: September 10, 2013 Decided: October 17, 2013 Before SHEDD, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Theresa A. Kennedy, LAW OFFICES OF THERESA A. KENNEDY, LLC, Washington, New Jersey, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gerardo Villalon Hernandez pleaded guilty to illegally reentering the United States after having previously been removed following a conviction for a felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district court sentenced Hernandez of appeals. to fifty-seven imprisonment and he now sentence unreasonable Finding no error, we affirm. Hernandez because months the argues district that court the failed to is explicitly consider a sentence of probation. We review a sentence for reasonableness, applying discretion standard. 51 see States, an abuse 552 U.S. of 38, (2007); also Layton, 564 F.3d 330, 335 (4th Cir. 2009). consideration of both the Gall United United States v. This review includes procedural reasonableness of a sentence. v. and substantive Gall, 552 U.S. at 51; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In this case, Hernandez challenges only the procedural reasonableness of his sentence. In determining whether a sentence is procedurally reasonable, we examine the sentence for significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [(2006)] failing factors, to consider selecting a the [18 sentence U.S.C.] based § 3553(a) on clearly erroneous facts, or failing to adequately explain the chosen 2 sentence[.] Gall, 552 U.S. at 51. We will presume on appeal that a sentence within a properly calculated advisory Guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption Guidelines sentence). of reasonableness for within- We have thoroughly reviewed the record and conclude that the sentence is procedurally reasonable. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions before this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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