US v. Hector Ramirez-Cortez, No. 14-4057 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4057 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR RAMIREZ-CORTEZ, Gonzalez-Martinez, a/k/a Hector Ramirez, a/k/a Juan Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00161-TDS-1) Submitted: July 28, 2014 Decided: August 4, 2014 Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Kyle D. Pousson, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hector written States plea as Ramirez-Cortez agreement, an to aggravated pleaded guilty, illegally felon, in pursuant re-entering violation to a the United 8 U.S.C. of § 1326(a), (b)(2) (2012), and received a sentence of forty-two months imprisonment. On appeal, Ramirez-Cortez challenges the reasonableness of his sentence. We review deferential States, a We affirm. sentence abuse-of-discretion 552 U.S. 38, 41, for reasonableness standard. 51 (2007). Gall Our under v. review a United entails appellate consideration of both the procedural and substantive reasonableness procedural of the sentence. reasonableness, we Id. at consider 51. whether In evaluating the district court properly considered the advisory nature of the Sentencing Guidelines, range, gave correctly the calculated parties defendant s opportunity an the to Guidelines argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, and sufficiently explained the selected sentence. at 49-51. review the If there sentence is for no significant substantive procedural reasonableness, into account the totality of the circumstances. presume a sentence within or below a v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). 2 we tak[ing] Id. at 51. properly Guidelines range to be substantively reasonable. error, Id. We calculated United States Ramirez-Cortez asserts that the district court procedurally erred in determining that it lacked authority to vary downward on the basis of the sentencing disparities that result from selected Ramirez-Cortez application contends that of the the fast-track district court program. improperly concluded that it was bound by this court s decision in United States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006), because the Supreme Court s subsequent decision in Kimbrough v. United States, 552 U.S. 85 (2007) (holding that sentencing courts may vary . . . based solely on policy considerations, including disagreements with the Guidelines ), allows a district court to consider such a sentencing disparity. This disparity court between held in Perez-Pena defendants that receiving any fast sentencing track plea agreements and those who do not is warranted as a matter of law, because such disparities are sanctioned by Congress and the Sentencing Commission. marks omitted). We have 453 F.3d at 243 (internal quotation not revisited Perez-Pena in a Fast-tracking refers to a procedure that originated in states along the United States Mexico border, where district courts experienced high caseloads as a result of immigration violations. United States v. Perez Pena, 453 F.3d 236, 238 (4th Cir. 2006). In conformity with the fast-track practice, prosecutors seek to obtain pre-indictment guilty pleas by offering to move for a downward departure under U.S. Sentencing Guidelines Manual § 5K3.1, p.s. 3 published, precedential decision since Kimbrough, and Perez-Pena remains controlling in this circuit. Even if the district court had authority to consider this sentencing reliance on disparity, Perez-Pena however, was we harmless. conclude Under that harmless its error review, we will not reverse the court s judgment when the error did not have a substantial and injurious effect or influence on the result. Cir. 2010) See United States v. Lynn, 592 F.3d 572, 585 (4th (internal quotation marks omitted). As the Government correctly asserts, the district court in this case specifically stated that, even if it had authority to do so, it would not grant a downward variance related to the lack of a fast-track plea offer in Ramirez-Cortez s case. Ramirez-Cortez also asserts that his sentence was substantively unreasonable because it was greater than necessary to accomplish the goals of 18 U.S.C. § 3553(a). court, however, fully considered Ramirez-Cortez s The district cooperation with federal agents, his employment history, and the support of his family in granting a downward variance and imposing a fortytwo-month sentence. Because Ramirez-Cortez does not offer any additional factors to rebut the appellate presumption afforded his below-Guidelines sentence, we conclude that his sentence is substantively reasonable. See Susi, 674 F.3d at 289; United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006). 4 Accordingly, dispense with oral we affirm argument the because criminal the judgment. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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