UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4475
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICARDO JAVIER ARELLANO,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00060-MR-1)
Submitted: March 23, 2011 Decided: June 27, 2011
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Federal Defender, Ross H. Richardson,
Assistant Federal Defender, for Appellant. Edward R. Ryan,
United States Attorney, Charlotte, North Carolina; Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo Javier Arellano appeals the 408-month sentence
imposed following his guilty plea to three counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(d) (2006), and one
count of forced accompaniment during a bank robbery, in
violation of 18 U.S.C. § 2113(e). Counsel for Arellano filed a
brief in this court in accordance with Anders v. California, 386
U.S. 738 (1967), certifying that there are no non-frivolous
issues for appeal, but questioning whether the district court
imposed an unreasonable sentence. Arellano was informed of his
right to file a pro se supplemental brief but has not done so.
Finding no reversible error, 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, 45 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010). We 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.
2
If there are no procedural errors, we 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). While we presume 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). Rather, in reviewing a sentence outside the
Guidelines range, we “consider the extent of the deviation, but
must give due deference to the district court’s decision that
the § 3553(a) factors, on the whole, justify the extent of the
variance.” United States v. Morace, 594 F.3d 340, 346 (4th
Cir.), cert. denied, 131 S. Ct. 307 (2010). That we would have
imposed a different sentence is not reason alone to vacate the
district court’s sentence. Id.
We hold that the district court committed neither
procedural nor substantive error during sentencing. The court
used the correct advisory Guidelines range and explained its
reasoning, considering both parties’ arguments and the § 3553(a)
factors. Further, the court explicitly found that the facts of
Arellano’s crimes made his case exceptional, warranting an
above-Guidelines sentence in light of the § 3553(a) factors. In
doing so, it did not abuse its discretion.
3
In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Arellano, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Arellano requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Arellano.
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
4