United States v. Luis Alejo-Vasquez ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4374
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS ALEJO-VASQUEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00230-WO-1)
Submitted: October 7, 2011 Decided: October 18, 2011
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Harry L. Hobgood, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Alejo-Vasquez (“Alejo”) pled guilty, pursuant to
a written plea agreement, to one count of illegal reentry of a
deported or removed alien after conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a), (b)(2) (2006). The
presentence report (“PSR”) recommended a base offense level of
eight and a twelve-level increase because Alejo previously had
been deported after sustaining a conviction for a felony drug
trafficking offense for which he received a sentence of
imprisonment of thirteen months or less. See U.S. Sentencing
Guidelines Manual (“USSG”) § 2L1.2(a), (b)(1)(B) (2010). The
PSR also recommended a three-level reduction for acceptance of
responsibility, see USSG § 3E1.1, resulting in a total offense
level of seventeen. Alejo’s criminal history was in Category
III, and the PSR accordingly calculated his Guideline range at
thirty to thirty-seven months’ imprisonment. Alejo did not
object to the PSR’s calculation of the Guidelines range. The
district court adopted the PSR, calculated the Guidelines range
at thirty to thirty-seven months’ imprisonment, and sentenced
Alejo to thirty-three months’ imprisonment. On appeal, Alejo
challenges this sentence as procedurally and substantively
unreasonable. We affirm.
This court reviews the sentence imposed by the
district court, “whether inside, just outside, or significantly
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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) (2006)
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 ways tailored to the individual and
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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, this court applies 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).
Alejo argues that his sentence is procedurally
unreasonable because the district court failed to address his
arguments for a sentence at the “low end” of the Guidelines
range and explain why it rejected those arguments. After review
of the record, we conclude this contention is without merit. At
sentencing, Alejo advanced his personal circumstances without
explaining why those circumstances merited a sentence at the low
end of the Guidelines. The district court listened to Alejo’s
arguments, noted that the Guidelines range accounted for these
circumstances, and stated that, after consideration of the
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Guidelines range and the § 3553(a) factors, a within-Guidelines
sentence of thirty-three months’ imprisonment was sufficient,
but not greater than necessary, to achieve the purposes of
sentencing. We therefore conclude that Alejo fails to establish
procedural error by the district court.
Alejo also argues that the thirty-three-month sentence
is substantively unreasonable. Specifically, Alejo contends
that, as a result of the application of USSG § 2L1.2(b)(1)(B),
his offense level and resulting Guidelines range overrepresented
the seriousness of his criminal conduct and that the Guidelines
treated him as if he had committed more serious offenses, a
treatment he asserts does not comport with § 3553(a)’s overall
goal that a sentence not be excessive. Alejo further contends
that the thirty-three-month sentence is unreasonable in light of
his struggles with drug addition, his cooperation with
immigration authorities, and his work and military history.
Alejo, however, has not demonstrated that the district
court erred in its application of USSG § 2L1.2 and does not
direct us to any authority establishing that a proper
application of this Guideline could produce a sentence
unintended by Congress. Further, Alejo fails to explain how his
personal characteristics render the within-Guidelines sentence
of thirty-three months’ imprisonment unreasonable when measured
against the § 3553(a) factors. Accordingly, he fails to
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overcome the appellate presumption that his within-Guidelines
sentence is substantively reasonable.
We therefore affirm the district court’s judgment.
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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