UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE ISAIAS LAZO-BONILLA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cr-00518-HMH)
Submitted: April 6, 2007 Decided: May 14, 2007
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephanie A. Rainey, RAINEY & BROWN, LLC, Spartanburg, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Maxwell Cauthen, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Isaias Lazo-Bonilla appeals the forty-six month
sentence the district court imposed after he pled guilty to illegal
reentry in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). We
affirm.
Lazo-Bonilla’s offense conduct carried a base offense
level eight. U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(a)
(2005). Because he was previously deported after conviction for a
felony drug trafficking offense with a sentence exceeding thirteen
months, a sixteen-level enhancement was added. USSG
§ 2L1.2(b)(1)(A). Lazo-Bonilla was granted a three-level reduction
for acceptance of responsibility pursuant to USSG § 3E1.1,
resulting in a total offense level of twenty-one. This, coupled
with Lazo-Bonilla’s criminal history category of III, yielded an
advisory Guidelines range of forty-six to fifty-seven months. The
district court sentenced Lazo-Bonilla to the lowest sentence in
that range, forty-six months. He appeals, asserting that the
district court erred in failing to depart downward from that
sentence, although Lazo-Bonilla did not move for such a departure
or object to any part of the presentence report or the sentence
imposed.
In a post-Booker* sentencing, the district court must
calculate the advisory Guideline range and then consider whether
*
United States v. Booker, 543 U.S. 220 (2005).
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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
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).
Lazo-Bonilla does not succeed in rebutting the
presumption that the sentence, imposed at the low end of the
applicable Guidelines range, is reasonable. Lazo-Bonilla did not
move for a downward departure, and the district court did not err
in failing to sua sponte depart downward. The court stated that it
considered the § 3553(a) factors and the advisory Guidelines range
and concluded that a Guidelines sentence was appropriate. The
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court then imposed the lowest sentence in the properly-calculated
range. We find this sentence to be reasonable.
Accordingly, we affirm Lazo-Bonilla’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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