United States v. Armando Tapia-Martinez , 585 F. App'x 193 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARMANDO TAPIA-MARTINEZ, a/k/a Hector Miguel Tapia-Martinez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:13-cr-00313-H-1)
Submitted: November 14, 2014 Decided: November 19, 2014
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Armando Tapia-Martinez appeals his thirty-six-month
sentence imposed following his guilty plea to illegal reentry of
an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2012). On appeal, he challenges the substantive reasonableness
of his sentence. Finding no error, we affirm.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). When reviewing for substantive
reasonableness, the district court “tak[es] into account the
totality of the circumstances.” Id. at 51. If the sentence is
within or below the properly calculated Guidelines range, we
apply a presumption on appeal that the sentence is substantively
reasonable. United States v. Yooho Weon, 722 F.3d 583, 590 (4th
Cir. 2013). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the [18 U.S.C.] § 3553(a) [2012] factors.” United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
(internal quotation marks and citation omitted).
Tapia-Martinez argues that, “[c]onsidering [his]
background, the fact that he returned to the United States only
to regain custody of his autistic son and the fact that he
intended to immediately return to Mexico once custody and travel
arrangements for his son could be arranged,” the thirty-six-
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month sentence imposed by the district court was greater than
necessary to satisfy the statutory purposes of sentencing.
(Appellant’s Br. at 7). He claims that, over the past seven
years, he has “demonstrated his willingness to obey the law and
remain outside the United States and a personal commitment to
his children and family. It was not until these two principles
came into conflict that [he] returned to the United States.”
(Id. at 10).
Notably, Tapia-Martinez does not challenge the
procedural reasonableness of his sentence or argue that the
district court failed to adequately explain the chosen sentence.
Although the district court’s explanation was brief, it noted
the need for “deterrence and protection” in Tapia-Martinez’ case
(J.A. 38), and gave Tapia-Martinez an opportunity to present his
mitigating factors at sentencing. Tapia-Martinez was given the
within-Guidelines sentence that he requested, and his argument
is essentially just a disagreement with the district court’s
weighing of the § 3553(a) factors and ultimate decision to
sentence him at the high end of the Guidelines range. Because
Tapia-Martinez has failed to rebut the presumption of
reasonableness, we conclude that his sentence is substantively
reasonable.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately expressed in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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