United States v. Hernandez , 383 F. App'x 359 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cr-00246-F-1)
Submitted: May 18, 2010 Decided: June 18, 2010
Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Hernandez pleaded guilty to possession of
methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a) (2006). The district court sentenced Hernandez
to 327 months of imprisonment and he now appeals. Finding no
error, we affirm.
Hernandez argues that the sentence is procedurally
unreasonable. We review a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d
330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the [g]uidelines range, treating the [g]uidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall, 552 U.S. at 51. Finally, we “then
consider the substantive reasonableness of the sentence
imposed.” Id. This court presumes on appeal that a sentence
within a properly calculated advisory guidelines range is
substantively reasonable. See United States v. Go, 517 F.3d
216, 218 (4th Cir. 2008); Rita v. United States, 551 U.S. 338,
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346-56 (2007) (upholding permissibility of presumption of
reasonableness for within guidelines sentence).
Hernandez argues that the district court failed to
adequately explain the chosen sentence. In United States v.
Carter, 564 F.3d 325 (4th Cir. 2009), this court reaffirmed that
a district court must conduct an “individualized assessment” of
the particular facts of every sentence, whether the court
imposes a sentence above, below, or within the guidelines range.
Id. at 330. While “[t]his individualized assessment need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case at hand and adequate to permit meaningful
appellate review.” Id. (internal quotation marks and citation
omitted). In addition, “[w]here [the parties] present[]
nonfrivolous reasons for imposing a . . . sentence [outside the
advisory guidelines range,] . . . a district judge should
address the party’s arguments and explain why he has rejected
those arguments.” Id. at 328 (internal quotation marks and
citation omitted).
We have thoroughly reviewed the record and conclude
that the district court provided an adequate statement of
reasons for its sentence at the high end of the advisory
guidelines range. Moreover, we find that the court explained
its rejection of Hernandez’s nonfrivolous arguments for a
sentence at the bottom of the guidelines range and responded to
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Hernandez’s various requests and, therefore, we also find that
the sentence is procedurally reasonable.
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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