United States v. Silva-Colon , 291 F. App'x 503 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS SILVA-COLON, a/k/a Carlos Colon,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:07-cr-00207-F-1)
Submitted: August 21, 2008 Decided: September 10, 2008
Before WILLIAMS, Chief Judge, and KING and DUNCAN,1 Circuit Judges.
Affirmed by unpublished per curiam opinion.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, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
1
Judge Duncan did not participate in consideration of this
case. The opinion is filed by a quorum of the panel pursuant to 28
U.S.C. § 46(d).
PER CURIAM:
Carlos Silva-Colon pled guilty to illegal reentry by an
aggravated felon, in violation of 8 U.S.C. §§ 1326(a), (b)(2)
(2000), and was sentenced to forty-seven months’ imprisonment, a
sentence within the advisory guideline range suggested by the
federal sentencing guidelines. He appeals his sentence. We
affirm.
Silva-Colon did not move for a sentence below the
guideline range; thus we review for plain error his claim on appeal
that the district court erred in failing to grant him a downward
sentencing variance. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731 (1993). Silva-Colon claims a variance
should have been granted, sua sponte, because the application of
the sixteen-level enhancement he received for a prior crime of
violence2 resulted in an unreasonable sentence, as the sentence was
longer than necessary to comply with the statutory purposes of
sentencing set forth in 18 U.S.C. § 3553(a) (West 2000 & Supp.
2007). He does not dispute that his advisory guidelines range was
properly calculated, or that the sixteen-level enhancement was
properly applied. Rather, he claims that any application under
USSG § 2L2.2(b)(1)(A) results in an unreasonable sentence, unless
2
See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2L1.2(b)(1)(A)(iii)(2007).
2
the district court sentences a defendant below the guidelines
range.
We find no merit to Silva-Colon’s assertion that the
district court is required to apply a variance to offset the
application of USSG § 2L1.2(b)(1)(A)(iii), particularly where, as
here, no such request was made by the defendant. Absent such a
request, the district court had no duty to consider granting a
variance.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597-98 (2007). We first determine whether the district court
committed any procedural error, such as failing to calculate the
guideline range properly, consider the § 3553(a) factors, or
explain the sentence adequately, id., and then decide whether the
sentence is substantively reasonable. Id.; see also United
States v. Brewer, F.3d , 2008 WL 733395, at *4 (4th Cir.
2008). In this case, the district court followed the necessary
procedural steps.
The appeals court must also consider the substantive
reasonableness of the sentence. Gall, 128 S. Ct. at 597. A
sentence within a properly calculated guideline range, as
Silva-Colon’s sentence was, may be accorded a presumption of
reasonableness. See Rita v. United States, 127 S. Ct. 2456, 2462
(2007). Here, we conclude that the sentence was reasonable.
3
Silva-Colon does not contest the calculation of his guideline
range, and the district court sentenced him at the middle of the
properly-calculated range. The district court imposed the sentence
after considering the arguments at the sentencing hearing,
including Silva-Colon’s request for leniency, and the § 3553(a)
factors.
We therefore affirm the sentence imposed by 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
4