UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUANITA VALERIO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (CR-03-505)
Submitted: October 31, 2006 Decided: March 20, 2007
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John C. Kiyonaga, KIYONAGA & KIYONAGA, Alexandria, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Kelli H.
Ferry, Assistant United States Attorney, Michael J. Frank, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juanita Valerio pled guilty, without a plea agreement, to
conspiracy to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2000). The district court sentenced her
in 2004 to a 135-month term of imprisonment. In light of United
States v. Booker, 543 U.S. 220 (2005), we vacated her sentence and
remanded for resentencing. United States v. Valerio, 149 F. App’x
187 (4th Cir. 2005) (No. 04-4318). On remand, the district court
resentenced Valerio to 135 months in prison. She appeals her
sentence on the ground that the district court did not adequately
consider the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006), and that the court gave excessive weight to the advisory
sentencing guideline range. We affirm.
In a post-Booker sentencing, the district court must
calculate the advisory guideline range and then consider whether
that range “serves the factors set forth in § 3553(a) and, if not,
select a sentence that does serve those factors.” United States v.
Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). This court reviews a post-Booker 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.) (internal quotation marks and citation omitted), cert.
denied, 126 S. Ct. 2054 (2006). “[A] sentence within the proper
advisory Guidelines range is presumptively reasonable.” United
- 2 -
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations
omitted). “[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).
In sentencing Valerio, the district court considered the
arguments of counsel and rejected Valerio’s claim that a sentence
below the properly calculated advisory guideline range was
warranted based upon her family circumstances, the procedural
history of her case, the sentencing disparity between her sentence
and the sentence her husband received, her immigration status, and
her ineligibility for a prison drug program. Our review of the
record convinces us that Valerio has failed to rebut the
presumption of reasonableness accorded to sentences within the
properly calculated advisory guideline range. Finally, although
Valerio asserts that the district court gave the advisory
sentencing guideline range excessive weight, we do not agree. The
district court was not free to reject the Sentencing Commission’s
determination that certain drug amounts warrant a particular base
offense level. See Johnson, 445 F.3d at 344-45 (refusing to
disregard grouping provisions in sentencing guidelines); United
States v. Eura, 440 F.3d 625, 634 (4th Cir. 2006) (finding district
- 3 -
court’s rejection of 100:1 crack to powder cocaine ratio is
unreasonable and “impermissibly usurps Congress’s judgment about
the proper sentencing policy for cocaine offenses”) (internal
quotation marks and citation omitted), petition for cert. filed, __
U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659).
Accordingly, we affirm Valerio’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
- 4 -