United States v. Rivera-Magana ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BONAFACIO RIVERA-MAGANA, a/k/a Bonasacio
Magano Rivera, a/k/a Dominges Morales Rodolfo,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (CR-04-38)
Submitted: April 27, 2006 Decided: May 1, 2006
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nikita V. Mackey, MACKEY & ASSOCIATES, P.L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bonafacio Rivera-Magana pled guilty to one count of
illegal reentry of a deported alien, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2000). Rivera-Magana appeals, arguing that his
twenty-seven month sentence was unreasonable when considered in
light of all the factors in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2005). Finding no error, we affirm.
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 applicable guideline range
as well as the factors set forth in 18 U.S.C.A. § 3553(a). Id. If
the sentence imposed is within the properly calculated guideline
range, it is presumptively reasonable. United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006).
Here, Rivera-Magana’s adjusted offense level was
seventeen and the district court reduced his criminal history
category from III to II. Rivera-Magana's twenty-seven month
sentence was within the guideline range of twenty-seven to thirty-
three months, and well within the statutory maximum of twenty
years. Although Rivera-Magana contends that the district court did
not adequately consider the sentencing factors set forth in
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§ 3553(a), the court heard argument about Rivera-Magana’s family
circumstances, and the court stated it had considered the nature
and circumstances of the offense. The court need not “robotically
tick through § 3553(a)’s every subsection.” United States v.
Johnson, ___ F.3d ___, 2006 WL 893594, *5 (4th Cir. Apr. 7, 2006).
Because the record demonstrates the court’s consideration of
§ 3553(a), we find no error.
Accordingly, we affirm Rivera-Magana's sentence. 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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