United States v. Gustavo Hernandez-Luna , 457 F. App'x 335 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4214
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GUSTAVO HERNANDEZ-LUNA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:10-cr-00313-H-1)
Submitted: November 8, 2011 Decided: December 14, 2011
Before NIEMEYER, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gustavo Hernandez-Luna appeals from a sixty-month
sentence imposed upon him pursuant to his guilty plea to illegal
reentry by a convicted felon. The presentence report (“PSR”)
recommended a base offense level of eight and a sixteen-level
increase because Hernandez-Luna previously had been deported
after sustaining a conviction for a crime of violence, namely
aggravated assault. See U.S. Sentencing Guidelines Manual
§ 2L1.2 (2010) (“Section 2L1.2”). Hernandez-Luna moved for a
variance sentence and a sentence at the low end of the
Guidelines range (fifty-seven months), arguing that Section
2L1.2 unreasonably increased his advisory range, failed to
reflect the statutory sentencing factors, and did not exemplify
the Sentencing Commission’s exercise of its characteristic
institutional role. See Kimbrough v. United States, 552 U.S.
85, 109-10 (2007) (holding that district courts are entitled to
reject application of certain Guidelines based on disagreement
with underlying policy). The district court denied Hernandez-
Luna’s request, reasoning that, given the totality of his
criminal record, the enhancement was not unreasonable.
Hernandez-Luna argues on appeal that his sentence is both
procedurally and substantively unreasonable. We affirm.
2
We review a sentence imposed by the district court,
“whether inside, just outside, or significantly outside the
Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51.
In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s Guidelines range. Id. at 49, 51. We
then consider whether the district court treated the Guidelines
as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors
and any arguments presented by the parties, selected a sentence
based on “clearly erroneous facts,” or failed to explain
sufficiently the selected sentence. Id. at 50-51; United States
v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “When rendering a
sentence, the district court must make an individualized
assessment based on the facts presented,” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted), and must “adequately explain the
chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing,” Gall, 552 U.S. at
50. “When imposing a sentence within the Guidelines, however,
the [district court’s] explanation need not be elaborate or
lengthy because [G]uidelines sentences themselves are in many
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ways tailored to the individual and reflect approximately two
decades of close attention to federal sentencing policy.”
United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010)
(internal quotation marks omitted).
If the sentence is free of significant procedural
error, we review the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. 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 by showing “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).
Hernandez-Luna argues that his sentence is
procedurally unreasonable because the district court failed to
address his argument that Section 2L1.2 was an unreasonable
enhancement in and of itself, without application to his
specific circumstances. Hernandez-Luna contends that the
district court only addressed whether the application of the
Guidelines was reasonable based upon his individual
characteristics and did not address his actual claim as to
whether the Guideline was generally inappropriate as a policy
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matter. “Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different sentence than that
set forth in the advisory Guidelines, a district [court] should
address the party’s arguments and explain why [it] has rejected
those arguments.” Carter, 564 F.3d at 328.
We conclude that the district court properly
considered Hernandez-Luna’s arguments in the context of his
individual characteristics. The court read Hernandez-Luna’s
memorandum and heard additional oral argument. There is no
indication that the court misunderstood the policy arguments
being made or its discretion to impose a variance sentence on
policy grounds. In fact, the district court stated that, had
Hernandez-Luna’s prior conviction been an aberration, the court
might have been more inclined to agree with him that the
Guidelines range was too harsh. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (noting
that district court’s consideration of policy decisions
underlying the Guidelines is part of the § 3553(a) analysis). 1
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Hernandez-Luna argues without support on appeal that
“[t]he sixteen-level enhancement under § 2L1.2 is either a
reasonable increase or it is not. . . . The reasonableness . . .
does not depend upon the defendant to whom it is being applied.”
Appellant’s Br. at 15. However, the district court is required
to impose an individualized sentence based on individualized
reasoning. Thus, the district court is free to find the
Guideline appropriate is certain cases and not in others. See
United States v. Mitchell, 624 F.3d 1023, 1028 (9th Cir. 2010)
(Continued)
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Accordingly, the court, as required, provided individualized
reasoning for Hernandez-Luna’s sentence and thus there was no
procedural error.
Hernandez-Luna also argues that his sentence is
substantively unreasonable. Specifically, he contends that, as
a result of the application of Section 2L1.2, his offense level
and resulting Guidelines range overrepresented the seriousness
of his criminal conduct and did not comport with § 3553(a)’s
overall goal that a sentence not be excessive. He also contends
that the Guideline is arbitrary and was not adopted after
careful consideration and research.
Hernandez-Luna fails to overcome the appellate
presumption that his sixty-month sentence is substantively
reasonable. He has not demonstrated on appeal that the district
court erred in its application of Section 2L1.2 and does not
direct this court to any authority for the proposition that a
proper application of this Guideline produces a sentence
unintended by Congress. Further, his policy argument, even if
accepted in other cases, would not require the district court to
impose a sentence below the Guidelines range. See United
(noting that sentencing judge is empowered to disagree with
particular Guidelines “when the circumstances in an individual
case warrant”), cert. denied, 131 S. Ct. 1542 (2011).
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States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007); see also
United States v. Lopez, 650 F.3d 952, 967 (3d Cir. 2011)
(rejecting similar Section 2L1.2 challenge and noting that, even
where policy arguments have been found valid, rejection of
Guidelines range is not required when court does not, in fact,
have a disagreement with the Guideline at issue); United
States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (holding
that Section 2L1.2 was properly adopted pursuant to usual
procedures and rejecting policy challenge where the district
court arrived at the sentence after application of § 3553
factors). Hernandez-Luna’s sentence was near the bottom of his
presumptively reasonable Guidelines range. 2 Accordingly, we
conclude that, under the totality of the circumstances,
Hernandez-Luna fails to establish that his sentence is
substantively unreasonable.
Because Hernandez-Luna fails to establish that the
district court abused its discretion in imposing sentence, we
affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
2
Despite Hernandez-Luna’s contention, a Guidelines range
calculated under Section 2L1.2 is still presumptively
reasonable. See Mondragon-Santiago, 564 F.3d at 366.
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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