UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4246
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO DE JESUS MARTINEZ-INTRERIANO, a/k/a Jose Carranza-
Contreras,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00266-BO-1)
Submitted: December 15, 2010 Decided: January 13, 2011
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven A. Feldman, FELDMAN & FELDMAN, Uniondale, New York, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Sebastian Kielmanovich, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario de Jesus Martinez-Intreriano pleaded guilty to
illegally reentering the country after having been deported
following a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced
Martinez-Intreriano to fifty-seven months of imprisonment and he
now appeals. For the reasons that follow, we affirm.
Martinez-Intreriano argues that the district court
erred in failing to adequately explain the chosen sentence. We
review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th
Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we
first examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
[g]uidelines range, treating the [g]uidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
Gall, 552 U.S. at 51. We then “‘consider the substantive
reasonableness of the sentence imposed.’” United States v.
Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at
51), cert. denied, 129 S. Ct. 476 (2008). If the sentence is
within the guidelines range, then we apply a presumption of
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reasonableness. Rita v. United States, 551 U.S. 338, 346-59
(2007) (upholding presumption of reasonableness for
within-guidelines sentence).
We have held that a district court must conduct an
“individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the guidelines range. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). While “[t]his individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case at hand and
adequate to permit meaningful appellate review.” Id. at 330
(internal quotation marks and citation omitted). In addition,
“[w]here [the parties] present[] nonfrivolous reasons for
imposing a . . . sentence [outside the advisory guidelines
range,] . . . a district judge should address the party’s
arguments and explain why he has rejected those arguments.” Id.
at 328 (internal quotation marks and citation omitted).
Moreover, “[b]y drawing arguments from § 3553 for a
sentence different than the one ultimately imposed, an aggrieved
party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.”
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). In
order to preserve a claim, however, a defendant must argue for a
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sentence different than that ultimately imposed. See id.; see
also United States v. Thompson, 595 F.3d 544, 546 (4th Cir.
2010) (“[A] defendant need only ask for a sentence outside the
range calculated by the court prior to sentencing in order to
preserve his claim for appellate review.”) (citation omitted).
Where a defendant has failed to preserve the claim for appellate
review, we review for plain error.
Martinez-Intreriano argues that the district court
failed to explain the within-guidelines sentence, and failed to
respond to his nonfrivolous sentencing arguments. We agree.
However, while Martinez-Intreriano argued factors in mitigation
at sentencing, he never requested a sentence below the
guidelines range or otherwise different than the sentence
imposed by the district court. Therefore, we review this issue
for plain error.
“To establish plain error, [Martinez-Intreriano] must
show that an error occurred, that the error was plain, and that
the error affected his substantial rights.” United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Martinez-Intreriano satisfies these requirements, “correction of
the error remains within our discretion, which we should not
exercise . . . unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
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omitted). We have thoroughly reviewed the record and conclude
that Martinez-Intreriano has failed to demonstrate that the
court’s failure to adequately explain the chosen sentence was
plain error.
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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