United States v. Cano-Martinez , 354 F. App'x 740 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4360
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE CANO-MARTINEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00452-HEH-1)
Submitted: October 30, 2009 Decided: December 3, 2009
Before MICHAEL, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Dana J. Boente, 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Unpublished opinions are not binding precedent in this circuit.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:
Jose Cano-Martinez pled guilty without a plea
agreement to one count of illegal reentry of an aggravated
felon, in violation of 8 U.S.C. § 1326 (2006), and was sentenced
to 27 months in prison. Cano-Martinez’s sole argument on appeal
is that the district court’s twenty-seven month sentence is
substantively unreasonable because he asserts that it was
greater than necessary to meet the purposes of sentencing.
Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, and “whether inside, just
outside, or significantly outside the Guidelines range,” this
court applies a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 591
(2007). The court first must “ensure that the district court
committed no significant procedural error.” Id. at 597. Only
if the sentence is procedurally reasonable can this court
evaluate the substantive reasonableness of the sentence, again
using the abuse of discretion standard of review. Id.; United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
In determining whether the district court committed any
significant procedural error, this court looks to any failure in
the calculation (or the improper calculation) of the Guidelines
range, the treatment of the Guidelines as mandatory, the failure
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to consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2009)
factors, the selection of a sentence using clearly erroneous
facts, and any failure to adequately explain the chosen
sentence, including any deviation from the advisory Guidelines
range. Gall, 128 S. Ct. at 597. This court applies an
appellate presumption of reasonableness to a within-Guidelines
sentence. See United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007); see also Nelson v. United States, 129 S. Ct.
890, 892 (2009) (emphasizing that the presumption of
reasonableness accorded a within-Guidelines sentence is an
appellate court presumption rather than a presumption enjoyed by
a sentencing court).
After reviewing the record and considering
Cano-Martinez’s arguments, we find that Cano-Martinez has not
rebutted the presumption of reasonableness this court accords
the district court’s within-Guidelines sentence. See Allen,
491 F.3d at 193. 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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