UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4380
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FERNANDO LUIS TOLENTINO-TOLENTINO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:13-cr-00245-BR-1)
Submitted: March 20, 2015 Decided: April 2, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Seth M. Wood, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Luis Tolentino-Tolentino (“Tolentino-Tolentino”)
pleaded guilty to one count of illegal reentry by an aggravated
felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). The
district court sentenced Tolentino-Tolentino to 46 months’
imprisonment, the low end of the Sentencing Guidelines range.
Tolentino argues that the sentence is both procedurally and
substantively unreasonable. He contends that the 16-level
increase to the offense level, as called for by U.S. Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(vii) (2013), unjustly
increased his Guidelines range, and that the resulting sentence
is both procedurally and substantively unreasonable. Finding no
error, we affirm.
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
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If the sentence is free of “significant procedural error,”
we review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. Any
sentence within or below a properly calculated Guidelines range
is presumptively substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th
Cir. 2012). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) sentencing factors. Louthian, 756 F.3d
at 306. Any sentence imposed by the district court must be
“sufficient, but not greater than necessary,” to satisfy the
purposes of sentencing. 18 U.S.C. § 3553(a).
Here, the district court properly calculated the Guidelines
range, allowed the parties to argue for the appropriate
sentence, considered the § 3553(a) sentencing factors, did not
base the sentence on erroneous facts, and sufficiently explained
the sentence. We conclude that the sentence was procedurally
reasonable.
We observe that the district court considered Tolentino-
Tolentino’s policy arguments regarding the application of USSG
§ 2L1.2(b)(1)(A)(vii). It is well-established that a district
court may consider policy-based objections to the Guidelines.
See Spears v. United States, 555 U.S. 261, 265-66 (2009) (per
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curiam) (“[D]istrict courts are entitled to reject and vary
categorically from the crack-cocaine Guidelines based on a
policy disagreement with those Guidelines.”); Kimbrough v.
United States, 552 U.S. 85, 91, 109-10 (2007). However,
“[a]lthough a sentencing court may be entitled to consider
policy decisions underlying the Guidelines, . . . it is under no
obligation to do so.” United States v. Rivera-Santana, 668 F.3d
95, 101 (4th Cir. 2012) (citation omitted). Here, the court
acknowledged Tolentino-Tolentino’s policy-based arguments, which
were asserted in support of Tolentino-Tolentino’s request for a
below-Guidelines sentence, and gave its reasons for rejecting
those arguments. The court’s imposition of a within-Guidelines
sentence is presumptively substantively reasonable, and we find
no reason to conclude that the sentence is unreasonable when
measured against the § 3553(a) sentencing factors.
Accordingly, we affirm the sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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