UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS RIOS-SANTOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00274-FL-1)
Submitted: January 29, 2015 Decided: February 12, 2015
Before WILKINSON, GREGORY, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Shailika S. Kotiya, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Santos Rios-Santos pled guilty to illegal reentry into
the United States after having been convicted of an aggravated
felony, 8 U.S.C. § 1326(b) (2012). At Rios-Santos’ sentencing
hearing, his attorney requested a sentence below the advisory
Guidelines range of 24-30 months’ imprisonment. The district
court rejected Rios-Santos’ request and sentenced him to a 28-
month term. He appeals, arguing that the district court failed
to adequately provide an individualized reason as to why it
rejected his request for a below-Guidelines sentence. He also
argues that the fact of his prior felony conviction should have
been presented to a jury and proven beyond a reasonable doubt.
We affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46 (2007). This review requires appellate consideration of
both the procedural and substantive reasonableness of a
sentence. Id. After determining whether the district court
properly calculated the defendant’s advisory Guidelines range,
this court must then consider whether the district court
considered the 18 U.S.C. § 3553(a) (2012) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Gall, 552 U.S. at 49–50; see Rita v.
United States, 551 U.S. 338, 346–47 (2007); United States v.
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Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, we review
the substantive reasonableness of the sentence, “taking into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (internal quotation
marks and citation omitted). This court applies a presumption
of correctness to a sentence within the properly-calculated
Guidelines range. Rita, 551 U.S. at 346–47.
Here, the district court correctly calculated Rios-
Santos’ Guidelines range and, after hearing his arguments for a
below-Guidelines sentence, imposed a within-Guidelines sentence
of 28 months. We find that the district court’s explanation was
sufficient to show that the court conducted the sort of
individualized sentencing analysis required under Gall and
Carter.
Rios-Santos also argues that the fact of his prior
conviction should have been presented to a jury and proven
beyond a reasonable doubt. He concedes, however, that this
argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 228-35, 239-47 (1998) (holding statute permitting
increased sentence based on prior conviction is penalty
provision, not element of offense).
Accordingly, we affirm Rios-Santos’ sentence. 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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