United States v. Mendoza-Rivera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4909
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CESAR MENDOZA-RIVERA, a/k/a Carlos Conchiano,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:06-cr-00012-D)
Submitted: March 30, 2007 Decided: May 2, 2007
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Mendoza-Rivera pled guilty to illegal reentry into
the United States after having been convicted of an aggravated
felony and removed from the United States, in violation of 8 U.S.C.
§ 1326(a), (b)(1) (2000). The district court sentenced him to
fifty-seven months imprisonment. Mendoza-Rivera appeals the
sentence, contending that this circuit’s decision to review
sentences within a correctly calculated guideline range as
presumptively reasonable renders the guidelines mandatory and is
consequently unconstitutional. We affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
we review a sentence “to determine whether the sentence is within
the statutorily prescribed range and is reasonable.” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006) (internal quotation marks and citation omitted).
“[A] sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006). “[A] defendant can only 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 and
citation omitted), petition for cert. filed, U.S.L.W.
(U.S. July 21, 2006) (No. 06-5439). While a district court must
consider the various § 3553(a) factors and explain its sentence, it
- 2 -
need not explicitly reference § 3553 or discuss every factor on the
record. Johnson, 445 F.3d at 345. This is particularly true when
the sentence is within the applicable guideline range. Id. In
fact, one reason that a sentence within an advisory range is
presumptively reasonable is that the most salient § 3553(a) factors
are already incorporated into guideline determinations. Id. at
342-43.
A sentence falling outside the guidelines is not
presumptively unreasonable. However, if the sentence was based on
an error in interpreting the guidelines or if the court provided an
inadequate statement of reasons or relied on improper factors, the
sentence will be unreasonable. United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). A
variance justified by reasons tied to § 3553(a) generally will be
reasonable. When a variance from the guidelines is substantial, we
must scrutinize the reasoning more intensely. The further the
sentencing court diverges from the guideline range, the more
compelling the reasons for the divergence must be. Moreland, 437
F.3d at 434.
In light of our precedents, we find no merit in Mendoza-
Rivera’s claim that our standard of review renders the guidelines
per se mandatory. We further conclude that Mendoza-Rivera has
failed to rebut the presumption that his sentence is reasonable.
- 3 -
We therefore affirm the sentence imposed by the district
court. 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
- 4 -