United States v. Romero-Candelaria , 274 F. App'x 287 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ROMERO-CANDELARIA,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-5743)
Submitted: April 8, 2008 Decided: April 24, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Carlos Romero-Candelaria appealed the fifty-seven-month
sentence he received for the offense of illegal reentry in
violation of 8 U.S.C.A. § 1326(a), (b)(2) (West 2006), arguing that
the district court failed to consider adequately a variance based
on various factors under 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2007). We affirmed the sentence.* The Supreme Court subsequently
vacated this court’s judgment and remanded the case for
reconsideration under Gall v. United States, 128 S. Ct. 586, 597
(2007). See United States v. Romero-Candelaria, 225 F. App’x 122
(4th Cir. 2007) (No. 06-5057), vacated, 128 S. Ct. 868 (2008).
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall, 128 S. Ct. at 597; see also
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The
appellate court must first ensure that the district court committed
no procedural error, such as “failing to calculate (or improperly
calculating) the Guideline range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
*
When Romero-Candelaria was first sentenced, the district
court imposed a variance sentence of twenty-four months to avoid a
disparity between Romero-Candelaria and defendants who participate
in a fast-track program in other districts. Relying on United
States v. Perez-Pena, 453 F.3d 236 (4th Cir.), cert. denied, 127 S.
Ct. 542 (2006), we vacated the sentence as unreasonable and
remanded for resentencing. United States v. Romero-Candelaria, 189
F. App’x 149 (4th Cir.) (No. 05-5185), cert. denied, 127 S. Ct. 610(2006).
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explain the chosen sentence--including an explanation for any
deviation from the Guideline range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence. Id.“Substantive reasonableness review entails taking into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range.” Pauley, 511 F.3d at 473. While the
court may presume a sentence within the Guidelines range to be
reasonable, it may not presume a sentence outside the range to be
unreasonable. Id. Moreover, it must give due deference to the
district court’s decision that the § 3553(a) factors justify
imposing a variance sentence and to its determination regarding the
extent of any variance. Even if the reviewing court would have
reached a different sentencing result on its own, this fact alone
is insufficient to justify reversal of the district court. Id. at
474.
At Romero-Candelaria’s October 2006 resentencing, the
district court followed the necessary procedural steps in
sentencing him, properly calculated the Guidelines range and,
presumably, considered that recommendation in conjunction with the
§ 3553(a) factors. However, the district court did not discuss the
§ 3553(a) factors put forward by Romero-Candelaria as grounds for
a variance, or explain its choice of a sentence. Because the
court did not have the benefit of Gall, we conclude that the proper
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course to follow is to vacate the sentence and remand the case to
give the district court an opportunity to reconsider the sentence
in light of Gall.
Therefore, we vacate the sentence imposed by the district
court and remand for resentencing. 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.
VACATED AND REMANDED
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