United States v. Ibarra-Zelaya

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4864
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS IBARRA-ZELAYA, a/k/a Carlos Zelay,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00096-D)
Submitted: April 29, 2008 Decided: May 20, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Ibarra-Zelaya pled guilty to illegal reentry of an
aggravated felon, in violation of 8 U.S.C. § 1326(a)(2), (b)(2)
(2000). He appeals his fifty-seven-month sentence, arguing that it
is unreasonable. Finding no reversible error, we affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
After calculating the appropriate advisory guidelines range, a
district court should consider the resulting range in conjunction
with the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2007) and determine an appropriate sentence. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
This court reviews a sentence to determine whether it is
reasonable, applying an abuse of discretion standard. Gall v.
United States, 128 S. Ct. 586, 594 (2007). This court presumes
that a sentence imposed within the properly calculated guidelines
range is reasonable. United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008); see Rita v. United States, 127 S. Ct. 2456,
2462-68 (2007). A district court must explain the sentence it
imposes sufficiently for this court to effectively review its
reasonableness, but need not mechanically discuss all the factors
listed in § 3553(a). United States v. Montes-Pineda, 445 F.3d 375,
380 (4th Cir. 2006), cert. denied, 127 S. Ct. 3044 (2007). The
district court’s explanation should indicate that it considered the
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§ 3553(a) factors and the arguments raised by the parties. Id.
This court does not evaluate the adequacy of the district court’s
explanation “in a vacuum,” but also considers “[t]he context
surrounding a district court’s explanation.” Id. at 381.
On appeal, Ibarra-Zelaya does not contest the calculation
of his guidelines range. Rather, he argues that the district court
failed to consider the impact of the sixteen-level enhancement
under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)
(2006), which he claims was unduly severe and resulted in a
sentence longer than necessary to achieve the purposes of 18
U.S.C.A. § 3553(a). Specifically, he argues that this immigration
guideline was enacted by the Sentencing Commission “with little
deliberation and no empirical justification,” and is therefore not
entitled to the same deference as other guidelines. He further
posits that the enhancement, by double-counting his criminal
history and distorting both the severity of the offense and the
potential for recidivism, undermines the purposes of § 3553(a).
We find that Ibarra-Zelaya has not overcome the
presumptive reasonableness of his sentence within the guidelines
range. The heart of Ibarra-Zelaya’s appeal amounts to a policy
attack on the applicable guidelines enhancement provision. A
sentence may be substantively unreasonable if the court misapplies
the guidelines or “rejects policies articulated by Congress or the
Sentencing Commission.” United States v. Moreland, 437 F.3d 424,
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433 (4th Cir. 2006). Here, Ibarra-Zelaya argues that his sentence
is unreasonable because the district court failed to reject a
policy adopted by the Sentencing Commission. At sentencing, the
district court, aware of its discretion to impose a sentence below
the advisory guidelines range, specifically considered and rejected
Ibarra-Zelaya’s position as to USSG § 2L1.2 based on the facts of
this case. The district court considered the § 3553(a) factors at
length and concluded that neither Ibarra-Zelaya’s criminal history
category nor total offense level was overstated in any way and that
the advisory guideline range was properly calculated and
appropriate. We therefore find that Ibarra-Zelaya has not
demonstrated that his sentence is unreasonable.
Accordingly, we affirm Ibarra-Zelaya’s sentence. 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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