UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4057
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR RAMIREZ-CORTEZ, a/k/a Hector Ramirez, a/k/a Juan
Gonzalez-Martinez,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00161-TDS-1)
Submitted: July 28, 2014 Decided: August 4, 2014
Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Kyle D. Pousson, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Ramirez-Cortez pleaded guilty, pursuant to a
written plea agreement, to illegally re-entering the United
States as an aggravated felon, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012), and received a sentence of forty-two
months’ imprisonment. On appeal, Ramirez-Cortez challenges the
reasonableness of his sentence. We affirm.
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). Our review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In evaluating
procedural reasonableness, we consider whether the district
court properly considered the advisory nature of the Sentencing
Guidelines, correctly calculated the defendant’s Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, and sufficiently explained the selected sentence. Id.
at 49-51. If there is no significant procedural error, we
review the sentence for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51. We
presume a sentence within or below a properly calculated
Guidelines range to be substantively reasonable. United States
v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
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Ramirez-Cortez asserts that the district court
procedurally erred in determining that it lacked authority to
vary downward on the basis of the sentencing disparities that
result from selected application of the fast-track program. ∗
Ramirez-Cortez contends that the district court improperly
concluded that it was bound by this court’s decision in United
States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006), because the
Supreme Court’s subsequent decision in Kimbrough v. United
States, 552 U.S. 85 (2007) (holding that sentencing courts may
“vary . . . based solely on policy considerations, including
disagreements with the Guidelines”), allows a district court to
consider such a sentencing disparity.
This court held in Perez-Pena that any sentencing
disparity between defendants receiving fast track plea
agreements and those who do not is “warranted as a matter of
law,” because such disparities are sanctioned by Congress and
the Sentencing Commission. 453 F.3d at 243 (internal quotation
marks omitted). We have not revisited Perez-Pena in a
∗
“‘Fast-tracking’ refers to a procedure that originated in
states along the United States–Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.” United States v. Perez–Pena, 453 F.3d 236, 238
(4th Cir. 2006). In conformity with the fast-track practice,
prosecutors seek to obtain pre-indictment guilty pleas by
offering to move for a downward departure under U.S. Sentencing
Guidelines Manual § 5K3.1, p.s.
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published, precedential decision since Kimbrough, and Perez-Pena
remains controlling in this circuit.
Even if the district court had authority to consider
this sentencing disparity, however, we conclude that its
reliance on Perez-Pena was harmless. Under harmless error
review, we will not reverse the court’s judgment when the error
“did not have a substantial and injurious effect or influence on
the result.” See United States v. Lynn, 592 F.3d 572, 585 (4th
Cir. 2010) (internal quotation marks omitted). As the
Government correctly asserts, the district court in this case
specifically stated that, even if it had authority to do so, it
would not grant a downward variance related to the lack of a
fast-track plea offer in Ramirez-Cortez’s case.
Ramirez-Cortez also asserts that his sentence was
substantively unreasonable because it was greater than necessary
to accomplish the goals of 18 U.S.C. § 3553(a). The district
court, however, fully considered Ramirez-Cortez’s cooperation
with federal agents, his employment history, and the support of
his family in granting a downward variance and imposing a forty-
two-month sentence. Because Ramirez-Cortez does not offer any
additional factors to rebut the appellate presumption afforded
his below-Guidelines sentence, we conclude that his sentence is
substantively reasonable. See Susi, 674 F.3d at 289; United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
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Accordingly, we affirm the criminal 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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