UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4174
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OCTAVIO CRUZ BELTRAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00198)
Submitted: September 11, 2007 Decided: September 13, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela Parrott, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Octavio Cruz Beltran pled guilty to possession of a
firearm by an illegal alien. At sentencing, the district court
overruled Beltran’s objections to the presentence report and
sentenced him to forty-eight months in prison, a sentence within
the Guidelines range. On appeal, Beltran contends that the
sentence is unconstitutional because he was sentenced under a de
facto mandatory Guidelines system. Accordingly, he asserts that
his sentence, which was based on the judge’s factual findings
rather than his admissions or jury findings, violated his Fifth and
Sixth Amendment rights. We affirm.
Because Beltran did not raise this issue in the district
court, our review is for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). We have concluded that sentencing
decisions made by the district court based upon the preponderance
of the evidence comport with the Sixth Amendment. See United
States v. Morris, 429 F.3d 65, 69 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). We review a 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.), 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).
However, while a sentence outside the Guidelines range is not
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presumptively unreasonable, United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), the further
the sentencing court diverges from the Guidelines, the more
compelling the reasons for the divergence must be. See Moreland,
437 F.3d at 434.
In light of our precedents, we find no merit to Beltran’s
claims that he was sentenced under a mandatory system. See United
States v. Rita, 127 S. Ct. 2456, 2462 (2007) (upholding presumption
of reasonableness). In addition, our review of the record shows
that the district court properly applied our precedents and that
the sentence is reasonable.
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
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