United States v. Rodriguez-Pineda ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4731
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS RODRIGUEZ-PINEDA, a/k/a Carlos Pineda,
a/k/a Carlos Rodriguez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-05-5)
Submitted: February 24, 2006 Decided: March 16, 2006
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlos Rodriguez-Pineda pled guilty, without the benefit
of a plea agreement, to one count of reentering the United States
after having been deported following an aggravated felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). The
district court sentenced Rodriguez-Pineda to seventy-one months’
imprisonment, at the top of the range calculated under the advisory
federal sentencing guidelines. Rodriguez-Pineda argues on appeal
that this sentence was unreasonable, alleging the district court
speculated that he engaged in drug dealing following his reentry to
the United States* when no evidence provided a basis for this
speculation.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound
by the range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in
determining a sentence post-Booker, sentencing courts are still
required to calculate and consider the guideline range prescribed
thereby as well as the factors set forth in 18 U.S.C. § 3553(a)
(2000). Hughes, 401 F.3d at 546. We will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47; see United States v. Green, ___
*
Rodriguez-Pineda was convicted of cocaine trafficking in
March 1999 and acknowledged this conviction at the guilty plea
hearing.
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F.3d ___, 2006 WL 267217 (4th Cir. Feb. 6, 2006). Further, “while
we believe that the appropriate circumstances for imposing a
sentence outside the guideline range will depend on the facts of
individual cases, we have no reason to doubt that most sentences
will continue to fall within the applicable range.” United
States v. White, 405 F.3d 208, 219 (4th Cir. 2005).
Here, the district court sentenced Rodriguez-Pineda at
the top of the sentencing guidelines and within the statutory
penalty. Further, the record clearly indicates that the district
court made no finding as to whether Rodriguez-Pineda resumed drug
dealing. Instead, the sentencing court remarked that Rodriguez-
Pineda “hasn’t learned much,” noting this was the defendant’s third
period of incarceration. Thus, in imposing the sentence, the
district court commented on considerations of respect for the law
and adequate deterrence. See 18 U.S.C. §§ 3553(a)(2)(A), (B).
Finding the sentence reasonable, 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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