United States v. Ricardo Martinez , 460 F. App'x 252 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4607
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO ELVIN MARTINEZ, a/k/a Ricardo Martinez-Selvin,
a/k/a Ricardo Martinez-Servin, a/k/a Jose Lopez Diaz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:10-cr-00164-RGD-DEM-1)
Submitted: December 14, 2011 Decided: January 4, 2012
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Katherine
Lee Martin, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIUM:
Ricardo Elvin Martinez pled guilty to illegally
reentering the United States after having been deported
subsequent to a felony conviction, in violation of 8 U.S.C.
§ 1326(a), (b)(1) (2006). Martinez received a within-Guidelines
ninety-month sentence. On appeal, Martinez argues that his
sentence is substantively unreasonable. Finding no error, we
affirm.
We review a sentence imposed by a district court for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007).
Such review requires consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 41; see United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Martinez
does not challenge the procedural reasonableness of his
sentence. See Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (noting that party’s failure to raise issue
in opening brief results in abandonment of issue).
We examine the substantive reasonableness of a
sentence under the totality of the circumstances. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court
accords a sentence within a properly calculated Guidelines range
an appellate presumption of reasonableness. United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Such a
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presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the [18 U.S.C. § 3553(a)
(2006)] factors.” United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006) (internal quotation marks omitted).
Martinez argues that his sentence should not be
afforded a presumption of reasonableness because the
sixteen-level enhancement he received pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A) (2010) is
not based on the Sentencing Commission’s characteristic
institutional role of empirical study. This argument amounts
to a policy attack on USSG § 2L1.2(b)(1)(A), and we conclude it
is without merit. * Accord United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009) (recognizing that appellate
courts are “not require[d to] discard[] the presumption [of
reasonableness] for sentences based on non-empirically-grounded
Guidelines” and applying presumption accordingly).
Martinez also argues that his sentence, driven by the
sixteen-level enhancement, is unreasonably large and
over-punishes his conduct. However, it is apparent from the
record that the district court considered Martinez’s argument
*
This court previously has rejected this argument in
several unpublished opinions. See, e.g., United States v.
Mendoza-Mendoza, 413 F. App’x 600, 602 (4th Cir.) (No. 10-4556)
(collecting cases), cert. denied, 131 S. Ct. 3078 (2011).
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for a downward departure and had a reasoned basis for its
decision to impose a within-Guidelines sentence in light of
Martinez’s extensive criminal history and its reasoned analysis
of the relevant § 3553(a) factors. We conclude that the
district court did not abuse its discretion in imposing a
within-Guidelines sentence, and we hold that the sentence is
substantively reasonable.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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