UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4761
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE SANTOS GONZALEZ-VILLATORO, a/k/a Jose Santos Gonzalez,
a/k/a Jose Lorenzo Gonzales, a/k/a Jose Gonzales, a/k/a
Jose DeLapaz Gonzales, a/k/a Jose Santo Gonzales-Villatoro,
a/k/a Jose Santos Gonzales, a/k/a XX Jose, a/k/a Jose
Morenzo Gonzales,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00087-JCC-1)
Submitted: February 14, 2011 Decided: March 17, 2011
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Francis H.
Pratt, Joshua M. Paulson, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Kondi J. Kleinman, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Santos Gonzalez-Villatoro appeals the twenty-
four-month sentence imposed following his guilty plea to illegal
reentry after an aggravated felony. On appeal, he contends that
the sentence imposed by the district court was rendered
procedurally unreasonable by the court’s failure to adequately
explain its chosen sentence. We vacate and remand for further
proceedings.
Gonzalez-Villatoro’s presentence investigation report
(“PSR”) determined that the Guidelines range was twenty-four to
thirty months. At his sentencing hearing, neither party
objected, and the court adopted the PSR’s findings. The court
then heard argument from the parties regarding the appropriate
sentence. Counsel for Gonzalez-Villatoro argued for a below-
Guidelines sentence based upon (1) the unreasonable double-
counting effect of a prior conviction being used to increase
Gonzalez-Villatoro’s criminal history points as well as his
offense level; (2) his positive employment history; and (3) his
pending deportation.
The court stated that it believed the Guidelines
calculation to be accurate and understood the advisory nature of
the Guidelines as well as its authority to depart or vary
downward. After hearing from Gonzalez-Villatoro, the court
sentenced him to twenty-four months, noting that “[t]he reason
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for the Court’s sentence is it reflects the nature and
circumstance, the seriousness of the offense, reflects the
history and characteristics of the defendant, promotes respect
for the law, provides just punishment, affords adequate
deterrence to criminal conduct, avoids unwarranted sentence
disparities.”
When, as here, a defendant properly preserves a claim
of sentencing error in the district court, we review the
sentence imposed under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 45 (2007); United
States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010). We must
begin by reviewing the sentence for significant procedural
error, including such errors as “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines 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 - including an explanation for any deviation from the
Guidelines.” Gall, 552 U.S. at 51. If there are no procedural
errors, we then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We
presume reasonable a sentence imposed within the properly
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calculated Guidelines range. United States v. Mendoza-Mendoza,
597 F.3d 212, 217 (4th Cir. 2010).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence, showing
that it has a reasoned basis for its decision and has considered
the parties’ arguments. Id. A sentencing court need not,
however, “robotically tick through” otherwise irrelevant
subsections of § 3553(a). See United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). When, as here, the district
court imposes a within-Guidelines sentence, the district court
may “provide a less extensive, while still individualized,
explanation.” United States v. Johnson, 587 F.3d 625, 639 (4th
Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). That
explanation, however, must be sufficient to allow for
“meaningful appellate review” such that we need “not guess at
the district court’s rationale.” Carter, 564 F.3d at 329-30
(internal quotation marks omitted).
We conclude that the district court abused its
discretion in sentencing Gonzalez-Villatoro. While counsel for
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Gonzalez-Villatoro made specific references to § 3553(a) factors
in support of his request for a below-Guidelines, the district
court neither addressed these arguments nor explained its
reasons for the chosen sentence. Although it listed several
§ 3553(a) factors, the district court did not articulate an
individualized assessment of the factors and could have made the
same recitation during any sentencing hearing. See Carter, 564
F.3d at 329 (finding error where “[t]he district court’s
asserted ‘reasons’ could apply to any sentence, regardless of
the offense, the defendant’s personal background, or the
defendant’s criminal history”).
We will reverse this type of preserved error unless we
find that the error was harmless. Lynn, 592 F.3d at 576. “To
avoid reversal for non-constitution, non-structural errors like
[the one presented here], the party defending the ruling below
(here, the Government) bears the burden of demonstrating that
the error was harmless, i.e. that it did not have a substantial
and injurious effect on the result.” Id. at 585 (internal
quotation marks omitted). The Government does not argue in its
brief that the error was harmless, and the record does not
conclusively show that “explicit consideration of [Gonzalez-
Villatoro’s] arguments would not have affected the sentence
imposed.” Id.
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Accordingly, we vacate Gonzalez-Villatoro’s sentence
and remand for the district court to properly address Gonzalez-
Villatoro’s arguments for a lower sentence and provide
individualized reasoning for the sentence imposed. * 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.
VACATED AND REMANDED
*
Of course, by this disposition, we indicate no opinion as
to whether the twenty-four month sentence was substantively
reasonable.
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