United States v. Rafael Lopez-Debora , 586 F. App'x 135 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4430
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAFAEL JOSE LOPEZ-DEBORA, a/k/a Rafael Jose Lopez-Devora,
a/k/a Rafael Lopez Devora, a/k/a Rafael Jose Devora, a/k/a
Rafael Jose Lopez, a/k/a Armando Lopez Flores, a/k/a
Armando Lopez-Flores, a/k/a Armando Flores Lopez, a/k/a
Armando Flores, a/k/a Armondo Lopez Flores, a/k/a
Christopher A. Rodriguez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00440-CCE-1)
Submitted: November 26, 2014 Decided: December 4, 2014
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rafael Lopez-Debora appeals the fifty-seven month
sentence imposed following his guilty plea to illegal reentry
after removal subsequent to conviction of an aggravated felony,
in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). On appeal,
Lopez-Debora argues that his sentence was greater than necessary
to satisfy the goals of sentencing enumerated in 18 U.S.C.
§ 3553(a) (2012). * Finding no error, we affirm.
We review a sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In
evaluating a claim that a sentence is not substantively
reasonable, 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 § 3553(a).” United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010).
*
Although the Government addresses the procedural
reasonableness of Lopez-Debora’s sentence in its response brief,
Lopez-Debora’s opening brief challenges only the substantive
reasonableness of his sentence. See United States v. Edwards,
666 F.3d 877, 887 (4th Cir. 2011) (recognizing that arguments
not raised in appellate brief generally are not considered).
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A reviewing court must accord deference to the trial
court’s determinations “and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Evans, 526
F.3d 155, 160 (4th Cir. 2008) (emphasis omitted). We presume on
appeal that Lopez-Debora’s below-Guidelines sentence is
substantively reasonable. See United States v. Susi, 674 F.3d
278, 289 (4th Cir. 2012). Lopez-Debora bears the burden to
rebut the presumption by demonstrating “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
We conclude that Lopez-Debora fails to meet this
burden. The record demonstrates that the court credited
Lopez-Debora’s argument that the continuing nature of his
reentry offense caused his twenty-year-old felony convictions to
significantly enhance his Guidelines range, producing a sentence
greater than his offense merited. However, the court determined
that this factor warranted a less substantial downward variance
than Lopez-Debora requested, in light of Lopez-Debora’s lengthy
illegal presence in the United States and continued criminal
conduct following his most recent illegal reentry. The mere
fact that the court accorded less weight to this consideration
than Lopez-Debora sought does not render the resulting sentence
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unreasonable. See Susi, 674 F.3d at 290 (recognizing that
sentence is not unreasonable simply because district court could
have assigned different weight to § 3553(a) factors in
calculating its sentence). Moreover, although Lopez-Debora
identified various mitigating circumstances related to his
personal history and characteristics, these circumstances are
not so compelling as to require a greater departure than that
provided by the district court.
Because Lopez-Debora has not rebutted the presumption
of reasonableness accorded his sentence, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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