UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4594
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE RUBIO-MARTINEZ, a/k/a Jose Rubio,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (1:04-cr-00401-NCT)
Submitted: November 30, 2006 Decided: January 24, 2007
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Rubio-Martinez appeals the fifty-seven-month
sentence he received after he pled guilty to illegal reentry, 8
U.S.C. § 1326(a), (b)(2) (2000). Rubio-Martinez contends on appeal
that his sentence is unreasonable because the district court did
not adequately explain its decision not to depart downward based on
his cultural assimilation. We affirm.
After United States v. Booker, 543 U.S. 220, 260-61
(2005), a sentence is reviewed for reasonableness. See also
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
Courts must calculate the appropriate guideline range, making any
appropriate factual findings, then consider the resulting advisory
guideline range in conjunction with the factors under 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), and determine an appropriate
sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.
2006). If a court imposes a sentence outside the guideline range,
the district court must state its reasons for doing so. Hughes,
401 F.3d at 546.
We have held that a sentence within a correctly
calculated guideline range is presumptively reasonable. United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). However, a
post-Booker sentence may be unreasonable for procedural and
substantive reasons. “A sentence may be procedurally unreasonable,
for example, if the district court provides an inadequate statement
- 2 -
of reasons . . . . A sentence may be substantively unreasonable if
the court relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission.” United
States v. Moreland, 437 F.3d 424, 434 (4th Cir.) (citations
omitted), cert. denied, 126 S. Ct. 2054 (2006).
Here, the court expressly stated that it did not find
cultural assimilation to be an appropriate ground for departure in
Rubio-Martinez’s case. We are satisfied that the court’s
explanation was adequate and the sentence was, consequently,
reasonable, because the court’s decision against a departure is not
reviewable, as long as the district court recognized its authority
to depart. United States v. Cooper, 437 F.3d 324, 333 (3d Cir.
2006) (collecting cases from five circuits discussing rule post-
Booker); United States v. Quinn, 359 F.3d 666, 682 (4th Cir. 2004)
(citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990), and stating rule in this Circuit pre-Booker). Rubio-
Martinez acknowledges that the district court understood its
authority to depart on this ground in an appropriate case.
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
- 3 -