UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4826
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MIGUEL ANGEL NAJERA-FRAIRE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00167-HEH)
Submitted: January 15, 2008 Decided: January 29, 2008
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Angel Najera-Fraire appeals his sentence for
reentering the country illegally after deportation, subsequent to
a conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(b)(2) (2000). Najera-Fraire received a sentence of
ninety-six months’ incarceration for his crime.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
After calculating the appropriate advisory guidelines range, a
district court should consider the resulting range in conjunction
with the factors set out in 18 U.S.C. § 3553(a) (2000), and
determine an appropriate sentence. United States v. Davenport, 445
F.3d 366, 370 (4th Cir. 2006).
A sentence is valid if it “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 that falls within the properly calculated advisory
guidelines range is entitled to a presumption of reasonableness.
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see
also Rita v. United States, 127 S. Ct. 2456, 2462-68 (2007)
(upholding application of presumption of reasonableness to
sentences within the guidelines).
Najera-Fraire’s sentence is presumptively reasonable
because it fell within the advisory guidelines range, which ranged
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from 77 to 96 months’ imprisonment. This presumption can only be
rebutted by showing the sentence is unreasonable when measured
against the § 3553(a) factors. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006), cert. denied, 127 S. Ct. 3044
(2007).
In imposing the sentence of ninety-six months, the
district court stated:
Well I have considered the United States sentencing
guidelines as advisory only, and I have reviewed all the
factors set forth in 18, United States Code, Section
3553(a). Of particular pertinence to this case is
deterrence, respect for the law, and protection of the
community.
With respect to that analysis, there is a motion
before the Court for a downward variance. This Court has
considered the testimony of Ms. Kline [Najera-Fraire’s
girlfriend]. And I do consider it to be significant that
he has a good work record and that he supports his
punitive family. However, on the other side of the
ledger, this is an individual who has continually
violated the law since the moment he set foot on U.S.
soil. He has 23 convictions for various offenses. He
has 2 burglary convictions; he has 4 DWI’s; he has
obstruction of justice; hit and run; filing a false
police report; and a whole host of driving on suspended
or no operator’s license.
I do not believe that anything short of a
significant period of incarceration will deter him from
reentering the United States or promote respect for the
law.
Najera-Fraire reentered the country twice after being
deported. His crime carries a maximum penalty of twenty years.
See 8 U.S.C. § 1326(b)(2). He received twenty-six different
convictions between 1994 and 2006. While the majority of those
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convictions were for traffic violations, such as driving while
intoxicated, driving with a suspended license, and failure to obey
a highway sign, other convictions included failure to appear,
theft, filing a false police report, obstructing justice, and
burglary. This record of chronic recidivism demonstrated a lack of
respect for United States law. The district court’s sentence, at
the high end of the applicable advisory guidelines range, is not
unreasonable in light of the nature of the offense and the need to
deter Najera-Fraire in the future. See Montes-Pineda, 445 F.3d at
379 (upholding the defendant’s sentence under comparable
circumstances).
Najera-Fraire argues his sentence was unreasonable
because the district court failed to consider the remoteness of his
felony conviction and his last deportation, his strong ties to the
United States, and the effect of his alien status when classified
by the Bureau of Prisons. While a district court must consider the
various § 3553(a) factors and explain its sentence, it need not
explicitly reference § 3553 or discuss every factor on the record,
particularly when the court imposes a sentence within the
guidelines range. Johnson, 445 F.3d at 345. “[W]hen a judge
decides simply to apply the Guidelines to a particular case, doing
so will not necessarily require lengthy explanation.” Rita, 127 S.
Ct. at 2468. The factors raised by Najera-Fraire do not
necessarily outweigh the seriousness of his offense, his
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recidivism, and long criminal record, and thus do not show that the
sentence he received was unreasonable.
Accordingly, we affirm the 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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