United States v. Juan Perez-Limon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4782
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUAN PEREZ-LIMON, a/k/a Rodrigo Aguilar Tlaczani,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cr-00028-REP-1)
Submitted: April 18, 2012 Decided: May 7, 2012
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Perez-Limon appeals the forty-six-month sentence
imposed following his guilty plea to illegal reentry after
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2006). On appeal, Perez-Limon argues that
the district court imposed a substantively unreasonable
sentence. We affirm.
We review a sentence imposed by a district court for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007);
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). We
first examine the sentence for “significant procedural error.”
Gall, 552 U.S. at 51. If we find a sentence procedurally
reasonable, we must consider its substantive reasonableness,
taking into account the totality of the circumstances. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). On appeal,
we presume a within-Guidelines sentence is substantively
reasonable. United States v. Bynum, 604 F.3d 161, 168-69 (4th
Cir. 2010). “Even if we would have reached a different
sentencing result on our own, this fact alone is ‘insufficient
to justify reversal of the district court.’” Pauley, 511 F.3d
at 474 (quoting Gall, 552 U.S. at 51).
Perez-Limon does not challenge the procedural
reasonableness of his sentence; instead he argues that the
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district court imposed an unreasonable sentence because (1) the
Guidelines calculation placed too much weight on a prior
conviction; (2) his minimal criminal history warranted a shorter
sentence; and (3) the illegal reentry Guidelines were not based
on empirical evidence. Perez-Limon’s first two claims are
meritless, because they essentially ask this court to substitute
our judgment for that of the district court. The district court
clearly considered Perez-Limon’s arguments for a downward
variance, and we will defer to its judgment that a
forty-six-month sentence was appropriate. See Pauley, 511 F.3d
at 474.
Perez-Limon also argues that the within-Guidelines
Sentence is not entitled to this court’s presumption of
reasonableness because the sixteen-level enhancement he received
is not based on empirical data as required by Kimbrough v.
United States, 552 U.S. 85 (2007). Kimbrough, however, did not
require district courts to consider the presence or absence of
empirical data underlying the Guidelines, United States v.
Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012), nor did it
require appellate courts to discard the presumption of
reasonableness for sentences “based on non-empirically grounded
Guidelines,” United States v. Mondragon-Santiago, 564 F.3d 357,
366 (5th Cir. 2010). Thus, we conclude that Perez-Limon’s
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sentence is entitled to a presumption of substantive
reasonableness.
Because Perez-Limon did not rebut the reasonableness
presumption, 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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