United States v. Juan Galvan-Magana , 444 F. App'x 689 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5270
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUAN CARLOS GALVAN-MAGANA, a/k/a Juan Carlos Sandoval,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas David
Schroeder, District Judge. (1:10-cr-00105-TDS-1)
Submitted: August 18, 2011 Decided: August 22, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Carlos Galvan-Magana appeals from his
forty-four-month sentence imposed pursuant to his guilty plea to
illegal re-entry of a convicted felon. Galvan-Magana challenges
his sentence on various grounds. We affirm.
First, Galvan-Magana asserts that the district court
erred in denying his motion for a departure on the basis of
cultural assimilation. However, we lack the authority to review
a district court’s denial of a downward departure unless the
district court did not recognize its authority to depart.
United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). As
it is clear that the district court understood its discretion in
this matter, we dismiss this portion of the appeal.
Second, Galvan-Magana challenges his sentence on
various bases not raised below. Specifically, he asserts that
his sentence is greater than necessary and unreasonable because
it lacks an empirical basis, the Guidelines overstate the
seriousness of his offense, illegal re-entry permits double
counting of prior convictions, the Guidelines create incongruous
and overreaching results, there is a disparity in sentencing
across districts, and illegal re-entry defendants spend more
time incarcerated than other defendants receiving the same
sentence. While Galvan-Magana was free to argue to the district
court that any or all of these circumstances supported a
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variance sentence, he did not do so. Because there was no
procedural error by the district court in its consideration of
these issues, our review on appeal is limited to considering the
substantive reasonableness of the sentence under an abuse of
discretion standard. See United States v. Savillon-Matute, 636
F.3d 119, 122-23 (4th Cir. 2011).
As such, we “examine[] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in [18 U.S.C.A.] § 3553(a) [(West 2000 &
Supp. 2011)].” United States v. Mendoza-Mendoza, 597 F.3d 212,
216 (4th Cir. 2010). We presume on appeal that a sentence
within a properly calculated Guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We
have reviewed the record and conclude that the district court
considered the § 3553(a) sentencing factors and imposed a
sentence consistent with those factors. Specifically, the court
noted Galvan-Magana’s continued criminal conduct, his
involvement with drugs, and the need to protect the public, and
weighed these factors against Galvan-Magana’s ties to the United
States and his employment history.
Because Galvan-Magana has not rebutted the presumption
of reasonableness accorded his within-Guidelines sentence, we
affirm his sentence. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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