United States v. Portillo-Sosa , 293 F. App'x 207 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIO CESAR PORTILLO-SOSA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00176-REP-1)
Submitted: September 3, 2008 Decided: September 16, 2008
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julio Cesar Portillo-Sosa pled guilty to unauthorized
reentry of a removed alien whose removal was subsequent to an
aggravated felony conviction, in violation of 8 U.S.C. § 1326(b)(2)
(2006). The district court properly calculated Portillo-Sosa’s
advisory Guidelines range to be 57-71 months of imprisonment, and
sentenced him to 71 months’ imprisonment.* Portillo-Sosa appeals,
alleging his sentence is both procedurally and substantively
unreasonable. For the reasons that follow, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence to determine whether it is unreasonable, applying
a “deferential abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 591, 594 (2007). A district court must
engage in a multi-step process at sentencing. First, the
sentencing court must calculate the appropriate Guidelines range by
making any necessary factual findings. Id. at 596. Then the court
should afford the parties “an opportunity to argue for whatever
sentence they deem appropriate.” Id. Next, it should consider the
resulting advisory sentencing range in conjunction with the factors
set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and
determine whether the § 3553(a) factors support the sentence
requested by either party. Id. Consideration of the factors in
*
Portillo-Sosa does not challenge the calculation of his
advisory Guidelines range.
2
§ 3553(a) does not require the sentencing court to “robotically
tick through” every subsection of § 3553(a). United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (internal
quotation marks and citation omitted).
To determine whether a sentencing court abused its
discretion, we undertake a two-part analysis. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). First, we examine the
sentence for “significant procedural errors,” and second, we
evaluate the substance of the sentence. Id. Significant
procedural errors include “‘failing to calculate (or improperly
calculating) the Guidelines 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
explain the chosen sentence . . . .’” Id. (quoting Gall, 128 S.
Ct. at 597). “Substantive reasonableness review entails taking
into account the ‘totality of the circumstances, including the
extent of any variance from the Guidelines range.’” Id. (quoting
Gall, 128 S. Ct. at 597). An appellate court may presume a
sentence within the Guidelines range to be reasonable. Rita v.
United States, 127 S. Ct. 2456, 2459, 2462 (2007).
Here, the district court followed the necessary steps in
sentencing Portillo-Sosa, and we find no abuse of discretion in its
decision to sentence him at the top of the Guidelines range.
Accordingly, we affirm the district court’s judgment. We dispense
3
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
4