United States v. Lopez-Guzman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4656
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCOS LOPEZ-GUZMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:06-cr-00123-D)
Submitted: February 8, 2008 Decided: February 20, 2008
Before TRAXLER and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcos Lopez-Guzman pled guilty to conspiracy to
distribute and possess with intent to distribute more than 500
grams of cocaine (Count 1), and use and carry of a firearm in the
furtherance of a drug trafficking crime (Count 2). The district
court properly calculated his advisory Sentencing Guidelines range
as 168-210 months for Count 1, and sentenced Lopez-Guzman to 186
months of imprisonment for this count. The court also sentenced
Lopez-Guzman to sixty months of imprisonment for Count 2. On
appeal, Lopez-Guzman argues that his 186-month sentence is
unreasonable. For the reasons that follow, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence to determine whether it is unreasonable with
regard to § 3553(a) factors, applying a “deferential abuse-of-
discretion standard.” Gall v. United States, 128 S. Ct. 586, 591
(2007). A district court must engage in a multi-step process at
sentencing. First, the district court must calculate the
appropriate advisory Sentencing Guidelines range by making any
necessary factual findings. Id. at 596. The court should then
afford the parties “an opportunity to argue for whatever sentence
they deem appropriate.” Id. Next, the sentencing court should
consider the resulting advisory sentencing range in conjunction
with the factors set out in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2007), and determine whether the § 3553(a) factors support
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the sentence requested by either party. Id. Considering the
factors in § 3553(a) does not require the sentencing court to
“robotically tick through” every subsection of § 3553(a). United
States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert.
denied, 127 S. Ct. 3044 (2007).
To determine whether a sentencing court abused its
discretion, we undertake a two-part analysis. United States
v. Pauley, 511 F.3d 468, ___, 2007 WL 4555520 (4th Cir. 2007).
First, we examine the sentence for “significant procedural errors,”
and second, we evaluate the substance of the sentence. Id. at *5.
Significant procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Id.
(internal quotations omitted). Second, we review the substantive
reasonableness of the sentence. This “entails taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. While an appellate
court may presume a sentence within the Guidelines range to be
reasonable, it may not presume a sentence outside the range to be
unreasonable. Moreover, it must give due deference to the district
court’s decision that the § 3553(a) factors justify the extent of
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any variance sentence. Even if the reviewing court would have
reached a different sentencing result on its own, this fact alone
is insufficient to justify reversal of the district court. Id.
Here, the district court followed the necessary steps in
sentencing Lopez-Guzman, and we find no abuse of discretion in its
within-Guidelines range sentence of 186 months for Count 1. 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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