United States v. Rivera

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4877

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JORGE LUCAS SANTIAGO RIVERA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:10-cr-00009-1)

Submitted: December 29, 2010 Decided: January 27, 2011

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant. R.
Booth Goodwin, II, United States Attorney, John L. File,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jorge Lucas Santiago Rivera appeals his seventy-seven-

month prison sentence for one count of assault with a dangerous

weapon in violation of 18 U.S.C. § 113(a)(3) (2006). On appeal,

Rivera contends that his term of imprisonment is substantively

unreasonable because it is greater than necessary to meet the

purposes of sentencing. We affirm.

We review a sentence imposed by a district court under

a deferential abuse-of-discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). The first step in this review

requires us to inspect for procedural reasonableness by ensuring

that the district court committed no significant procedural

errors, such as improperly calculating the guideline range,

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or

failing to adequately explain the sentence. United States v.

Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We then

consider the substantive reasonableness of the sentence imposed,

taking into account the totality of the circumstances. Gall,

552 U.S. at 51. On appeal, we presume that a sentence within a

properly-calculated guideline range is reasonable. United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

In the district court, Rivera did not object to the

court’s calculation of his guideline range or that he qualified

as a career offender as defined in U.S. Sentencing Guidelines

2
Manual § 4B1.1 (2009). Instead, Rivera argued before the

district court and now on appeal that his designation as a

career offender overstated the significance of his prior crimes.

According to Rivera, the district court should have sentenced

him to a lesser term of imprisonment than that recommended by

the Guidelines because he is not the sort of recidivist that the

career offender classification was designed to target. Rivera

did not, however, move the district court for a downward

departure under USSG § 4A1.3(b), but rather argued that the

court should exercise its discretion to impose a variance

sentence.

The district court pointed to numerous reasons

underlying its imposition of Rivera’s sentence, focusing

specifically on Rivera’s repeated attempts to pursue and stab

the victim during the assault as well as his difficulty with

avoiding criminal behavior. Given the district court’s

discretion in sentencing, we conclude that the sentence is

reasonable under the totality of the circumstances.

We therefore 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