US v. Miguel Silva, No. 13-4658 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4658 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL EDUARDO SILVA, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:12-cr-00021-MOC-DCK-1) Submitted: July 29, 2014 Decided: August 6, 2014 Before KING, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Ross Hall Richardson, Executive Director, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina; Douglas E. Roberts, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Miguel imposed Eduardo Silva appeals following his conviction by the a jury 127-month of sentence one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) (Count One), one count of attempt to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), count discharge (b)(1)(D) of a (2012) firearm (Count during and Two), in and one relation to a of drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2012) (Count Three). On appeal, Silva challenges the reasonableness of his sentence. We We affirm. review a sentence abuse-of-discretion standard. 38, 51 (2007). for reasonableness, using an Gall v. United States, 552 U.S. We must first review for significant procedural error[s], including, among other things, improperly calculating the Guidelines procedurally range. Id. reasonable may reasonableness. Only we if we consider find a sentence its substantive Id. Silva first argues that his sentence is procedurally unreasonable because the district court failed to provide notice of its decision to upwardly depart, as required by Fed. R. Crim. P. 32(h). Because Silva raised no relevant objection in the district court, our review of the issue is for plain error. See Fed. R. Crim. P. 52(b); Henderson v. United States, 133 S. Ct. 2 1121, 1126 27 district (2013) court requirement, (discussing failed comply Silva however, to fails affected his substantial rights. standard). with to Rule show Even if 32(h) s that this the notice failure See United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007) (holding that failure to give Rule 32(h) notice is plain error, but defendant failed to show error s effect on substantial rights). A sentencing error affects a defendant s substantial rights where, absent the error, a different sentence might have been imposed. United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010). stated that it absence of the identify In this case, the district court explicitly would upward anything new impose the departure, or identical and Silva additional that sentence has he in the failed would to have presented to the district court had he been afforded adequate notice under Rule 32(h). McClung, 483 F.3d at 277. Therefore, Silva is entitled to no relief on this claim. Silva next contends that the district court failed to properly apply the upward departure authorized under U.S. Sentencing Guidelines Manual ( USSG ) § 5K2.1, p.s. (2012), by failing to adequately consider the factors set forth therein. But the record reflects that the district court did explicitly consider the § 5K2.1 factors, specifically discussing Silva s 3 preparation, state of mind, and other relevant factors. Therefore, this claim is unavailing. Finally, Silva argues that his sentence is substantively unreasonable. Regardless of whether a district court a varies or departs to sentence above the Guidelines range, we review the substantive reasonableness of an aboveGuidelines sentence with regard to whether the [d]istrict [j]udge abused his discretion in determining that the § 3553(a) factors supported [the] sentence . deviation from the Guidelines range. doing so, we take into . . and justified [the] Gall, 552 U.S. at 56. account the totality of circumstances, including the extent of the deviation. In the Id. at 51. Here, in support of the sentence, the district court focused on the nature and circumstances of Silva s offense, the need to provide history and Silva s claim decision to adequate deterrence, characteristics. of bring Moreover, self-defense, a firearm and to but a the Silva s court determined drug deal personal considered that Silva s evidenced his willingness to use it, resulting in Silva shooting and killing a prospective drug buyer who tried to rob him. Therefore, Silva fails to show that his sentence is substantively unreasonable. See United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012) ( That a variance sentence deviates significantly from the 4 advisory Guidelines range . presumptively unreasonable. ); Diosdado-Star, 630 . F.3d 359, . does see 367 not also (4th alone United Cir. 2011) render States it v. (affirming sentence seventy-two months above Guidelines range where court properly explained its decision pursuant to § 3553(a) factors). 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 5

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