UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL GILVAJA-LEON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00036-FDW-1)
Submitted: September 30, 2008 Decided: November 19, 2008
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Peter S.
Adolf, Emily Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina; Matthew R. Segal,
Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Adam Morris, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Gilvaja-Leon appeals the fifty-seven month
sentence the district court imposed after he pled guilty to one
count of illegal reentry into the United States following
deportation, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000).
For the following reasons, we affirm.
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007);
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. Pauley, 511 F.3d at 473. In the Fourth Circuit, “[a]
sentence within the proper Sentencing Guidelines range is
presumptively reasonable.” United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456,
2462-69 (2007) (upholding presumption of reasonableness for
within-guidelines sentence). This presumption can be rebutted only
by showing that “the sentence is unreasonable when measured against
the § 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
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375, 379 (4th Cir. 2006) (internal quotation marks and citation
omitted).
Gilvaja-Leon first contends that the district court
improperly applied a presumption of reasonableness in determining
his sentence, which was at the top of the guideline range. In
Rita, the Supreme Court limited application of the presumption as
follows: “the presumption before us is an appellate court
presumption. Given our explanation in Booker, that appellate
‘reasonableness’ review merely asks whether the trial court abused
its discretion, the presumption applies only on appellate review.”
Rita, 127 S. Ct. at 2465. Our review of the record reveals that
although the district court mentioned the presumption, it did not
apply it when determining Gilvaja-Leon’s sentence. Rather, the
court correctly calculated the guideline range, treated the
guidelines as advisory, and, as discussed in more detail below,
considered the § 3553(a) factors in determining Gilvaja-Leon’s
sentence. Accordingly, this argument fails.
Gilvaja-Leon next asserts that the district court erred
in refusing to consider all of the factors set forth in § 3553(a),
specifically § 3553(a)(2)(D). A district court must explain the
sentence it imposes sufficiently for this court to effectively
review its reasonableness but need not mechanically discuss all the
factors listed in § 3553(a). Montes-Pineda, 445 F.3d at 380. The
court’s explanation should indicate that it considered the
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§ 3553(a) factors and the arguments raised by the parties. Id. We
do not evaluate the adequacy of the district court’s explanation
“in a vacuum” but consider “[t]he context surrounding a district
court’s explanation.” Id. at 381.
In this case, the district court explicitly stated that
it considered all of the § 3553(a) factors and highlighted in
particular Gilvaja-Leon’s violent criminal history. The district
court found that Gilvaja-Leon’s record made clear that he had no
respect for the law, and the court therefore concluded it necessary
to protect the public from further crimes. Simply because the
district court may have weighed the § 3553(a) factors differently
than Gilvaja-Leon desired does not establish that the district
court erred in imposing Gilvaja-Leon’s sentence.
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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