UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4699
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOISES HERNANDEZ-OSORIO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00054-F-1)
Submitted: May 19, 2015 Decided: May 22, 2015
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moises Hernandez-Osorio pled guilty to illegal reentry by
an aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2012). Hernandez-Osorio was sentenced to 57 months in prison.
He now appeals, claiming that his sentence is substantively
unreasonable. We affirm.
We review Hernandez-Osorio’s sentence “under a deferential
abuse-of-discretion standard.” See Gall v. United States, 552
U.S. 38, 41 (2007). When reviewing a sentence for substantive
reasonableness, we “examine[] the totality of the
circumstances,” United States v. Mendoza-Mendoza, 597 F.3d 212,
216-17 (4th Cir. 2010), and, if the sentence is within or below
the properly calculated Guidelines range, we presume that the
sentence is substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). This presumption is rebutted only if the defendant
shows “that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) [(2012)] factors.” Id.
Hernandez-Osorio disputes this standard of review and
argues that his within-Guidelines sentence should not be
afforded a presumption of reasonableness because the
sixteen-level enhancement he received pursuant to U.S.
Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2013) was not
based on an empirical study by the Sentencing Commission,
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unfairly punishes defendants for conduct that is accounted for
in their criminal history scores, and does not accurately
reflect the risk of recidivism. His argument amounts to a
policy attack on USSG § 2L1.2(b)(1)(A). We have consistently
rejected such attacks in other cases. See, e.g., United
States v. Martinez-Barrera, 539 F. App’x 266, 267-68 (4th Cir.
2013) (No. 13-4073), cert. denied, 134 S. Ct. 1330 (2014);
United States v. Romero-Martinez, 500 F. App’x 215, 216 n.* (4th
Cir. 2012) (No. 12-4333).
We conclude that the sentence is substantively reasonable
and that Hernandez-Osorio has failed to rebut the presumption of
reasonableness accorded his within-Guidelines sentence.
Accordingly, we affirm. 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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