United States v. Sergio Garza ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4161
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO GARZA, a/k/a Anatolio Balderas-Sanchez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cr-00076-BR-1)
Submitted: January 19, 2016 Decided: March 8, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Eleanor Morales, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sergio Garza pleaded guilty to illegally reentering the
United States after having been removed following a felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012).
The district court sentenced Garza within the advisory
Guidelines range to 27 months of imprisonment and he now
appeals. For the reasons that follow, we affirm the judgment.
On appeal, Garza challenges the procedural reasonableness
of the sentence. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, we
first examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. In conducting an individualized assessment at
sentencing, a district court must respond to the parties’
nonfrivolous arguments for imposing a sentence outside of the
Guidelines range. See United States v. Carter, 564 F.3d 325,
328, 330 (4th Cir. 2009).
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We then “‘consider the substantive reasonableness of the
sentence imposed.’” United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008) (quoting 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 of reasonableness
for within-Guidelines sentence).
Garza argues that the district court erroneously determined
that it could not depart or vary from the Guidelines range based
on the unavailability of a fast track, or early disposition,
program. Such programs provide for a departure in illegal
reentry cases if the defendant admitted guilt in a timely manner
and the government, having determined that such a departure is
warranted, moves for a departure. See U.S. Sentencing
Guidelines Manual § 5K3.1 (2015). Here, the court erred in
determining that an early disposition program was not available
in the district of the prosecution. However, that error was
harmless as the Government did not move for a departure pursuant
to § 5K3.1 of the Guidelines. Without such a motion, the court
could not have departed under that section. Therefore, we
conclude that the sentence is procedurally reasonable; we
further conclude that the sentence is substantively reasonable.
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Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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