United States v. Olvin Elvir-Soto ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLVIN ABEL ELVIR-SOTO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cr-00201-REP-1)
Submitted: June 29, 2012 Decided: July 10, 2012
Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olvin Abel Elvir-Soto pled guilty to illegally
reentering the United States after being removed for a
conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326 (2006). The district court sentenced Elvir-Soto to an
upward variance sentence of forty-eight months’ imprisonment.
Elvir-Soto appeals, arguing that the district court imposed an
unreasonable sentence. We affirm.
We review a sentence imposed by a district court for
reasonableness, applying “a deferential abuse-of-discretion
standard.” United States v. Rivera-Santana, 668 F.3d 95, 100
(4th Cir. 2012) (internal quotation marks omitted). If we find
the sentence procedurally reasonable, * we review the substantive
reasonableness of the sentence under the totality of the
circumstances. See United States v. Strieper, 666 F.3d 288,
292, 295 (4th Cir. 2012). A sentencing court must “impose a
sentence sufficient, but not greater than necessary, to comply
with the purposes [of sentencing].” 18 U.S.C. § 3553(a) (2006).
In determining whether a variance sentence is
reasonable, we must consider whether the degree of variance is
*
Elvir-Soto does not challenge on appeal the procedural
reasonableness of his sentence. See Mayfield v. Nat’l Ass’n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 376-77 (4th Cir.
2012) (noting that party’s failure to raise issue in opening
brief results in abandonment of issue).
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supported by the court’s justification, with a larger variance
requiring more substantial justification. See United States v.
Diosdado-Star, 630 F.3d 359, 366 (4th Cir.), cert. denied, 131
S. Ct. 2946 (2011). However, we must affirm if “the § 3553(a)
factors, on the whole, justified the sentence” imposed. Id. at
367 (internal quotation marks omitted). “Even if we would have
reached a different sentencing result on our own, this fact
alone is insufficient to justify reversal of the district
court.” United States v. Pauley, 511 F.3d 468, 474 (4th Cir.
2007) (internal quotation marks omitted).
We conclude that the district court’s sentence was
substantively reasonable. The district court considered
arguments from the parties addressing both mitigating and
aggravating factors and applied these arguments in fashioning a
sentence. The court specifically noted Elvir-Soto’s repeated
reentries, calculated purpose to violate the law, and actual and
apparent involvement in illegal activity, as well as his failure
to respond to the leniency previously accorded him by the
criminal justice system and the limiting effect of this leniency
on Elvir-Soto’s Guidelines range. Accordingly, the court
concluded that a within-Guidelines sentence would not be
sufficient to deter Elvir-Soto or others from future illegal
activity, to promote respect for the law, or to protect the
public from further criminal activity. While the upward
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variance was not insubstantial, we conclude the sentence imposed
was not disproportionate with the § 3553(a) factors as a whole
and did not constitute an abuse of discretion.
Accordingly, we affirm the judgment of 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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