UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4918
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN ANTONIO PONCE-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:13-cr-00070-BO-1)
Submitted: June 16, 2014 Decided: June 20, 2014
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Antonio Ponce-Gonzalez appeals his conviction and
sentence after pleading guilty to illegal reentry after being
deported subsequent to a felony conviction in violation of 8
U.S.C. § 1326(a), (b)(1) (2012). He was sentenced to 21 months
in prison and no supervised release. The district court ordered
that his prison sentence would run consecutively to his 14-month
sentence imposed by the court in another case. On appeal, he
contends that his counsel was ineffective for not appealing the
other judgment, and his sentence is unreasonable. We affirm.
To the extent that Ponce-Gonzalez challenges the other
judgment or counsel’s actions in the other case, this Court
lacks jurisdiction to consider his claims because he did not
appeal the judgment. See 18 U.S.C. § 3742(a) (2012); 28 U.S.C.
§ 1291 (2012). To the extent that he challenges his counsel’s
actions in this case, we conclude that the claim is not
cognizable on direct appeal because it does not conclusively
appear on the record that counsel was deficient or prejudicial.
See United States v. Powell, 680 F.3d 350, 359 (2012).
We review a criminal sentence for reasonableness using
an abuse of discretion standard. United States v. McManus, 734
F.3d 315, 317 (4th Cir. 2013) (citing Gall v. United States, 552
U.S. 38, 51 (2007)). We first consider whether the district
court committed a significant procedural error, such as
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improperly calculating the Guidelines range or inadequately
explaining the sentence imposed. United States v. Allmendinger,
706 F.3d 330, 340 (4th Cir.), cert. denied, 133 S. Ct. 2747
(2013). If the sentence is procedurally reasonable, we then
consider whether it is substantively reasonable, taking into
account the totality of the circumstances. Gall, 552 U.S. at
51. We presume that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
In sentencing, the district court must first correctly
calculate the defendant’s Guidelines range. Allmendinger, 706
F.3d at 340. The court is next required to give the parties an
opportunity to argue for what they believe is an appropriate
sentence, and the court must consider those arguments in light
of the factors set forth in 18 U.S.C. § 3553(a) (2012). Id.
When rendering a sentence, the court must make and place on the
record an individualized assessment based on the particular
facts of the case. United States v. Carter, 564 F.3d 325, 328,
330 (4th Cir. 2009). While a court must consider the statutory
factors and explain its sentence, it need not explicitly
reference § 3553(a) or discuss every factor on the record.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
The court “should set forth enough to satisfy the appellate
court that [it] has considered the parties’ arguments and has a
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reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
We have reviewed the record and conclude that the
sentence is reasonable. On appeal, Ponce-Gonzalez contends it
is unreasonable because the district court sentenced him at the
high end rather than the low end of his Guidelines range “when
there were not any aggravating factors and he had been
cooperating with the government,” and it failed to adequately
explain the decision. However, the court explained “the most
aggravating fact” in his case was that he was recently convicted
and sentenced to 364 days in prison for illegal reentry and was
deported again, but he came right back and the sentence did not
deter him from doing so. Moreover, while he argued that he had
“attempted to provide information to the Government to help
them,” he acknowledged his cooperation had not risen to the
level of substantial assistance; and he did receive a reduction
in his Guidelines range for acceptance of responsibility. We
conclude that the court reasonably determined and adequately
explained that a sentence at the high end of the Guidelines
range was appropriate based on his repeated violation of the law
and the fact that the prior sentence was inadequate to deter it.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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