UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4709
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EZAU YANEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:08-cr-00106-D-1)
Submitted: February 18, 2011 Decided: March 15, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ezau Yanez-Hernandez appeals the 156-month sentence he
received after pleading guilty to possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006), and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006).
On appeal, Yanez-Hernandez argues that the district court
violated his Fifth Amendment rights by considering his failure
to cooperate with investigators in determining his sentence. He
also contends that the sentence was greater than necessary under
18 U.S.C. § 3553(a) (2006). We affirm.
Because Yanez-Hernandez did not raise his Fifth
Amendment claim in the district court, we review for plain
error. United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir.
2010). “To establish plain error, the appealing party must show
that an error (1) was made, (2) is plain (i.e., clear or
obvious), and (3) affects substantial rights.” Id. at 577.
Even when a defendant meets these three criteria, we “may
exercise [our] discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks
omitted).
As support for his claim that the district court
violated his Fifth Amendment rights at sentencing, Yanez-
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Hernandez relies on Mitchell v. United States, 526 U.S. 314
(1999). We conclude, however, that Yanez-Hernandez’s reliance
on Mitchell is misplaced. Instead, it appears that neither the
Supreme Court nor this court has addressed the Fifth Amendment
issue Yanez-Hernandez raises, and other circuit courts have
reached different conclusions. Thus, in the absence of
mandatory authority to the contrary, Yanez-Hernandez cannot show
that any error was plain. See Lynn, 592 F.3d at 577; United
States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) (“An error is
clear or obvious when the settled law of the Supreme Court or
this circuit establishes that an error has occurred.”).
Yanez-Hernandez also argues that his sentence was
excessive. Appellate courts review sentences imposed by
district courts for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). When sentencing a defendant, a district court must
properly calculate the Guidelines range, treat the Guidelines as
advisory, consider the § 3553(a) factors, and explain its
reasons for selecting a sentence. Pauley, 511 F.3d at 473. We
presume that a sentence within the properly calculated
Guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding application of rebuttable
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presumption of correctness of within-Guidelines sentence).
Yanez-Hernandez has failed to show unreasonableness in the
district court’s determination that aggravating circumstances,
such as the quantity of drugs and scope of the enterprise,
outweighed the factors offered in mitigation.
Accordingly, we 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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