United States v. Ceron-Garcia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4575
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR CERON-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00448-REP-1)
Submitted: January 24, 2011 Decided: February 18, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Benjamin L. Hatch, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Arturo Ceron-Garcia appeals the within-
Guidelines 108-month sentence imposed following his guilty plea
to possession with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(viii) (2006). On appeal, Ceron-Garcia contends that
the district court imposed a substantively unreasonable sentence
because it used the offense level determined by the weight of
actual methamphetamine rather than the entire weight of the
mixture. Finding no reversible error, we affirm.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 45 (2007). First, we review the sentence
for significant procedural error, examining the record for
miscalculation of the Guidelines range, the treatment of the
Guidelines as mandatory, failure to consider the § 3553(a)
factors, the selection of a sentence based on clearly erroneous
facts, and failure to adequately explain the chosen sentence and
any deviation from the Guidelines. Gall, 552 U.S. at 51. If we
find no significant procedural error, we next assess the
substantive reasonableness of the sentence. United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). If the sentence
imposed is within the appropriate Guidelines range, we consider
it presumptively reasonable. United States v. Mendoza-Mendoza,
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597 F.3d 212, 216 (4th Cir. 2010). The presumption may be
rebutted by a showing “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).
Ceron-Garcia does not challenge the procedural
reasonableness of his sentence; he merely argues that the
district court erred when it declined to vary downward because
the sentencing disparity for actual methamphetamine and a
methamphetamine mixture is not based on empirical data and
national experience, as he argues is required by Kimbrough v.
United States, 552 U.S. 85, 109-10 (2007). Kimbrough, however,
did not require an empirical basis for all Sentencing
Guidelines. United States v. Mondragon-Santiago, 564 F.3d 357,
366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also
United States v. Talamantes, 620 F.3d 901, 901 (8th Cir. 2010)
(per curiam). While “district courts certainly may disagree
with the Guidelines for policy reasons and may adjust a sentence
accordingly[,] . . . if they do not, [appellate courts] will not
second-guess their decisions under a more lenient standard
simply because the particular Guideline is not empirically-
based.” Mondragon-Santiago, 564 F.3d at 367.
Thus, we presume reasonable Ceron-Garcia’s within-
Guidelines sentence. Because Ceron-Garcia fails to rebut the
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presumption, we hold that the district court did not abuse its
discretion in sentencing him to 108 months’ imprisonment.
Accordingly, 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 the
court and argument would not aid the decisional process.
AFFIRMED
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