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 2008-06

United States v. Soto-Larios , 280 F. App'x 287 ( 2008 )


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  •                                UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4521
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO SOTO-LARIOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-cr-00276-D)
Submitted:   January 4, 2008                  Decided:   June 3, 2008
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Soto-Larios pled guilty to illegal reentry by an
aggravated felon,
    8 U.S.C. § 1326
    (a), (b)(2) (2000), and was
sentenced to a term of fifty-seven months imprisonment. He appeals
his sentence.     We affirm.
Soto-Larios moved for a sentence below the guideline
range, arguing that a sentence of twenty-four months would be
adequate.    As grounds for a departure or variance, Soto-Larios (1)
cited his good character, as attested to by family members, co-
workers, and employers; (2) argued that his prior convictions
occurred during a brief anomalous period of his life; and (3)
argued that the 16-level enhancement he received for a prior crime
of violence* resulted in a sentencing range that was greater than
necessary to punish him fairly.       He also asked the court to take
into account that defendants sentenced in districts with fast-track
programs were more likely to receive reduced sentences, thus
arguably creating a sentencing disparity.
However, the district court decided to impose a sentence
within the guideline range.        The court noted its obligation to
consider the factors set out in
    18 U.S.C.A. § 3553
    (a) (West 2000 &
Supp.    2007).    The   court   observed   that    Soto-Larios   had   been
convicted of two serious crimes, one of which was committed while
*
U.S.    Sentencing   Guidelines      Manual   §   2L1.2(b)(1)(A)(ii)
(2006).
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he was on probation, and that after he was deported Soto-Larios
returned   to   the   country   illegally.    The   court   stated   that
deterrence to others considering illegal reentry was an important
consideration. The court stated that, even if it had discretion to
impose a below-guideline sentence based on fact-track disparity, as
argued by Soto-Larios, his case was not an appropriate one for the
exercise of that discretion.
We will affirm a sentence imposed by the district court
as long as it is “within the statutorily prescribed range and is
reasonable.”    United States v. Moreland,
    437 F.3d 424
    , 433 (4th
Cir.), cert. denied,
    126 S. Ct. 2054
     (2006) (internal quotation
marks and citation omitted).         When sentencing a defendant, a
district court must: (1) properly calculate the guideline range;
(2) determine whether a sentence within that range serves the
factors under
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2007); (3)
implement mandatory statutory limitations; and (4) explain its
reasons for selecting a sentence. United States v. Green,
    436 F.3d 449
    , 455-56 (4th Cir.), cert. denied,
    126 S. Ct. 2309
     (2006).          A
sentence within a properly calculated advisory guideline range is
presumptively reasonable.
    Id. at 457
    ; see Rita v. United States,
    127 S. Ct. 2456
     (2007) (upholding presumption of reasonableness).
This presumption can only be rebutted by showing that the sentence
is unreasonable when measured against the § 3553(a) factors.
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United States v. Montes-Pineda,
    445 F.3d 375
    , 379 (4th Cir. 2006),
cert. denied,
    127 S. Ct. 3044
     (2007).
Here, we conclude that the sentence was reasonable.   The
maximum statutory sentence for a violation of § 1326(a)(2) is
twenty years.   Soto-Larios does not contest the calculation of his
guideline range, and the district court sentenced him to fifty-
seven months, the bottom of the range.   The district court imposed
the sentence after considering the arguments at the sentencing
hearing and the § 3553(a) factors.
We therefore affirm the sentence imposed by the district
court.   We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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