United States v. Fernando Garcia-Rodriguez ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO GARCIA-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00382-CCE-1)
Submitted: January 29, 2013 Decided: March 12, 2013
Before GREGORY, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., GRAY & JOHNSON, LLP, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
JoAnna G. McFadden, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Garcia-Rodriguez pleaded guilty, pursuant to
a written plea agreement, to illegal reentry after removal based
on a conviction for an aggravated felony, in violation of 8
U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced
Garcia-Rodriguez to fifty-seven months’ imprisonment. On
appeal, Garcia-Rodriguez asserts that his sentence was
unreasonable because the district court declined to impose a
lower sentence. We affirm.
We review Garcia-Rodriguez’s sentence under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the advisory Guidelines
range, we must decide whether the court considered the § 3553(a)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
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circumstances.” Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.
If the sentence is within the appropriate Guidelines range, we
apply a presumption on appeal that the sentence is reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
To the extent that Garcia-Rodriguez challenges the
district court’s denial of a downward departure, a district
court’s refusal to depart from the applicable Guidelines range
does not provide a basis for appeal “unless the court failed to
understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Garcia-Rodriguez does not
assert, and the record does not indicate, that the district
court misunderstood its authority to depart. Accordingly, this
claim is not reviewable on appeal.
To the extent that Garcia-Rodriguez alleges that the
district court erred in failing to grant a downward variance, we
conclude that Garcia-Rodriguez’s sentence is both procedurally
and substantively reasonable. Garcia-Rodriguez does not assert
any specific procedural error, and our review of the record
confirms that the district court properly considered the
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§ 3553(a) factors, provided a detailed individualized
assessment, responded to defense counsel’s argument for a below-
Guidelines sentence, and clearly explained the imposed sentence.
Furthermore, Garcia-Rodriguez presents no evidence to rebut the
presumption of reasonableness applicable to his within-
Guidelines sentence.
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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