UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR ANTONIO LOPEZ-CERDA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00307-REP-1)
Submitted: September 16, 2010 Decided: October 25, 2010
Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W. Edward Riley, IV, RILEY & WELLS, Richmond, Virginia, for
Appellant. Neil H. MacBride, 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Unpublished opinions are not binding precedent in this circuit.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:
Edgar Antonio Lopez-Cerda pled guilty, pursuant to a
written plea agreement, to one count of illegal reentry after
prior removal in violation of 8 U.S.C. § 1326(a)(1) (2006). The
district court calculated Lopez-Cerda’s advisory Guidelines
range under the U.S. Sentencing Guidelines Manual (2009) at zero
to six months’ imprisonment and imposed a variance sentence of
12 months’ imprisonment. Lopez-Cerda timely appeals his
sentence, challenging the procedural and substantive
reasonableness of the 12-month prison term. *
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This review
entails appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 51.
Lopez-Cerda challenges the 12-month prison sentence as
procedurally and substantively unreasonable. We affirm.
We first review a sentence for significant procedural
error, including failure to calculate, or improperly calculating
the Guidelines range, treating the Guidelines as mandatory,
*
Although Lopez-Cerda has completed serving his term of
imprisonment, this appeal is not moot because Lopez-Cerda is
still subject to a one-year term of supervised release.
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failing to consider the factors under 18 U.S.C. § 3553(a)
(2006), selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence. Id. In
determining whether a sentence is substantively reasonable, we
“take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Id. at
51. Although we presume on appeal that a sentence within a
properly-calculated Guidelines range is reasonable, see United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007), we may not
presume that a sentence outside the Guidelines range is
unreasonable, see United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009).
In reviewing a sentence outside the Guidelines range,
we may “consider the extent of the deviation, but must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51. “[A] major departure should be supported by a
more significant justification than a minor one[,] [b]ut a
district court need not justify a sentence outside the
Guidelines range with a finding of extraordinary circumstances.”
United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008) (internal quotation marks and
citation omitted). Even if we would have imposed a different
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sentence, this fact alone will not justify vacatur of the
district court’s sentence. Gall, 552 U.S. at 51.
We conclude that Lopez-Cerda’s 12-month variant
sentence is reasonable. The district court heard counsel’s
argument on the appropriate sentence, offered Lopez-Cerda the
opportunity for allocution, and thoroughly considered relevant
§ 3553(a) factors, namely, Lopez-Cerda’s history and
characteristics, the nature and circumstances of his offense,
and the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment. We find that the sentence was “selected pursuant to
a reasoned process in accordance with law,” and that the reasons
relied upon by the district court are plausible and justify the
sentence imposed. See United States v. Pauley, 511 F.3d 468,
473-76 (4th Cir. 2007).
We accordingly affirm the district court’s judgment.
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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