UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FERMIN VALLES MORALES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:06-cr-00082-F)
Submitted: January 29, 2008 Decided: February 14, 2008
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fermin V. Morales was charged in a one-count indictment
with being in the United States following a deportation, in
violation of 8 U.S.C. § 1326 (2000). Morales pled guilty and was
sentenced to thirty-seven months’ imprisonment, in conformity with
his advisory Guidelines range. On appeal, Morales argues his
sentence was procedurally unreasonable. We affirm the judgment of
the district court.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
The district court must calculate the appropriate advisory
Guidelines range by making any necessary factual findings. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). The court
should then consider the resulting advisory Guidelines range in
conjunction with the factors set out in 18 U.S.C. § 3553(a) (West
2000 and Supp. 2007), afford the parties an opportunity to argue
for the sentence they deem appropriate, and determine the sentence.
Gall v. United States, 128 S. Ct. 586, 596-97 (2007). Considering
the factors in § 3553(a) does not require the sentencing court to
“robotically tick through” every subsection of § 3553(a). United
States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The
sentencing court may not presume that the Guidelines range is
reasonable, but if it decides to impose a sentence outside the
Guidelines range it “must consider the extent of the deviation and
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ensure that the justification is sufficiently compelling to support
the degree of the variance.” Id. at 596.
The appellate court reviews a sentence for
reasonableness, focusing on whether the district court abused its
discretion. United States v. Pauley, ___ F.3d ___, 2007 WL 4555520
(4th Cir. Dec. 28, 2007). This involves two steps: first,
examining the sentence for “significant procedural errors,” and
second, evaluating the substance of the sentence. Id. at *5.
Significant procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence - including an
explanation for any deviation from the Guidelines range.” Id.
(internal quotations omitted). “Substantive reasonableness review
entails taking into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Id. at *5. While the appellate court may presume a sentence within
the Guidelines range to be reasonable, it may not presume a
sentence outside the range to be unreasonable. Moreover, it must
give “due deference” to the district court’s decision that the
§ 3553(a) factors justify the extent of any variance sentence.
Morales argues that his sentence was procedurally
unreasonable because the district court imposed his sentence based
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on an erroneous belief that he had illegally reentered the United
States on more than one occasion. As Morales failed to object to
the district court’s alleged error or otherwise raise his claim in
the district court, his claim is reviewed for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).
Plain error review requires the defendant to establish that: (1)
there was error; (2) the error was “plain;” and (3) the error
affected the defendant’s substantial rights. Olano, 507 U.S. at
732. Even if the defendant makes this required showing, "Rule
52(b) leaves the decision to correct the forfeited error within the
sound discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings."
Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)
(internal quotations omitted)).
We have reviewed the disputed portion of the sentencing
hearing transcript and determine that Morales fails to establish
either that error occurred or that such error was “plain.” When
read in context, the transcript does not plainly establish that the
district court sentenced Morales under the mistaken belief that he
had reentered the United States multiple times following his
deportation. Also, Morales’ sentence was otherwise procedurally
reasonable. Prior to sentencing Morales, the district court heard
from Morales and defense counsel and properly calculated Morales’
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advisory Guidelines range. Also, prior to imposing sentence, the
court considered the advisory sentencing guidelines, other relevant
factors set forth in the advisory sentencing guidelines, and the
factors in 18 U.S.C. § 3553(a).
Morales’ sentence was also substantively reasonable.
After illegally entering the United States, Morales was arrested in
possession of twenty pounds of marijuana. Morales was subsequently
deported. However, he returned and, within five years of again
illegally entering the United States, was charged with trafficking
in cocaine. Accordingly, we affirm the judgment of 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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