US v. Isidro Escalante-Rivera, No. 15-4229 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4229 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ISIDRO ESCALANTE-RIVERA, a/k/a Jose Flores-Casares, a/k/a Jose Fernando Melgar-Melgar, Fernando Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:14-cr-00163-REP-1) Submitted: October 23, 2015 Decided: November 10, 2015 Before DUNCAN, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Kamens, Acting Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Nicholas J. Xenakis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, S. David Schiller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isidro Escalante-Rivera appeals his sentence of 21 months of imprisonment, imposed following his guilty plea to illegally reentering the United States after a felony conviction, violation of 8 U.S.C. § 1326(a), (b)(1) (2012). Escalante-Rivera significant argues that procedural the error district in in On appeal, court committed to consider refusing Escalante-Rivera’s fear of returning to Honduras as a basis for a downward variance. In reviewing a After careful review, we affirm. sentence for deferential abuse-of-discretion States, U.S. 552 district court 38, 51 committed standard. (2007). no reasonableness, We we Gall must “significant apply v. ensure procedural a United that the error,” including insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors imposed. or inadequate explanation of the sentence United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation marks omitted). In its explanation, the tick district court need not robotically through every § 3553(a) factor on the record, particularly when its sentence is within the properly calculated Guidelines range. States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). same time, the district court “must assessment based on the facts presented.” 2 make an United At the individualized Gall, 552 U.S. at 50. In making that assessment, “‘[n]o limitation [may] be placed on the information concerning the background, character, and conduct’ of a defendant that a district court may ‘receive and consider sentence.’” for the Pepper v. purpose United of imposing States, 562 (2011) (quoting 18 U.S.C. § 3661 (2012)). an U.S. appropriate 476, 490-91 In light of “the broad language of § 3661,” the Supreme Court has warned that courts have no “basis . . . to invent a blanket prohibition against considering certain types of evidence at sentencing.” Id. at 491 (internal quotation mark omitted). We perceive no procedural error in the district court’s consideration variance based distinct from of Escalante-Rivera’s on his fear “invent[ing] request of living a blanket in for a downward Honduras. prohibition Quite against considering” that evidence, the district court, in the exercise of its considerable sentencing discretion, merely found this fear was “not a basis for justifying a variance.” that Nor was the court’s comment regarding Escalante-Rivera’s residence with his aunt clearly erroneous. Therefore, argument, and reasonable. judgment. legal we we are unpersuaded conclude Accordingly, that we by his Escalante-Rivera’s sentence affirm the is sole procedurally district court’s We dispense with oral argument because the facts and contentions are adequately 3 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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