United States v. Garcia-Osorio ( 2007 )


Menu:
  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4049
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    ELEAZAR GARCIA-OSORIO,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. James A. Beaty, Jr., Chief
    District Judge. (1:06-cr-00273-JAB)
    Submitted:   July 31, 2007                 Decided:   August 15, 2007
    Before MICHAEL and TRAXLER, Circuit Judges, and WILKINS, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
    Assistant Federal Public Defender, Greensboro, North Carolina, for
    Appellant.   Angela Hewlett Miller, OFFICE OF THE UNITED STATES
    ATTORNEY, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM
    Eleazar Garcia-Osorio appeals his conviction and thirty-
    month sentence following his guilty plea to one count of illegal
    reentry of a previously deported aggravated felon, in violation of
    
    8 U.S.C. § 1326
    (a), (b)(2) (2000).            Garcia-Osorio’s counsel filed
    a brief pursuant to Anders v. California, 
    386 U.S. 738
    , 744 (1967),
    stating that there were no meritorious issues for appeal, but
    suggesting that the district court erred in sentencing Garcia-
    Osorio. The Government has declined to file a brief; Garcia-Osorio
    was advised of his right to file a pro se supplemental brief but
    elected not to do so.
    This court reviews the imposition of a sentence for
    reasonableness.     United States v. Booker, 
    543 U.S. 220
    , 260-61
    (2005); United States v. Hughes, 
    401 F.3d 540
    , 546-47 (4th Cir.
    2005).    After Booker, a district court is no longer bound by the
    range prescribed by the sentencing guidelines. Hughes, 
    401 F.3d at 546
    .     However, in imposing a sentence post-Booker, courts still
    must calculate the applicable guidelines range after making the
    appropriate    findings   of   fact    and    must   consider   the    range   in
    conjunction with the factors set forth in 
    18 U.S.C.A. § 3553
    (a)
    (West 2000 & Supp. 2007).      United States v. Moreland, 
    437 F.3d 424
    ,
    432 (4th Cir.), cert. denied, 
    126 S. Ct. 2054
     (2006).                 This court
    will affirm a post-Booker sentence if it “is within the statutorily
    prescribed range and is reasonable.”            Hughes, 
    401 F.3d at
    546-47
    - 2 -
    (citation omitted).         “[A] sentence within the proper advisory
    [g]uidelines range is presumptively reasonable.”               United States v.
    Johnson, 
    445 F.3d 339
    , 341 (4th Cir. 2006); see Rita v. United
    States, 
    127 S. Ct. 2456
    , 2462-69 (2007) (upholding application of
    rebuttable    presumption     of    reasonableness      to    within-guidelines
    sentence).
    Here,   the   district       court   treated    the   guidelines   as
    advisory, and sentenced Garcia-Osorio only after considering the
    sentencing    guidelines,     the     §    3553(a)   factors,      and   counsel’s
    arguments.     Garcia-Osorio’s thirty-month sentence is below the
    twenty-year statutory maximum sentence, see 
    8 U.S.C. § 1326
    (b)(2),
    and is presumptively reasonable, as it is within the appropriate
    guideline range.     As neither Garcia-Osorio nor the record suggests
    any information to rebut the presumption, we find that Garcia-
    Osorio’s sentence is reasonable.
    As required by Anders, we have reviewed the entire record
    and have found no meritorious issues for appeal.                    We therefore
    affirm the district court’s judgment.                This court requires that
    counsel inform his client, in writing, of his right to petition the
    Supreme Court of the United States for further review.                     If the
    client requests that a petition be filed, but counsel believes that
    such a petition would be frivolous, then counsel may move in this
    court for leave to withdraw from representation.               Counsel’s motion
    must state that a copy thereof was served on the client.                        We
    - 3 -
    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 -
    

Document Info

Docket Number: 07-4049

Judges: Michael, Per Curiam, Traxler, Wilkins

Filed Date: 8/15/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024