UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR GEOVANI OLIVERA-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00422-FL-1)
Submitted: March 18, 2021 Decided: March 22, 2021
Before WILKINSON and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, David A. Bragdon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oscar Geovani Olivera-Hernandez appeals the 46-month sentence imposed by the
district court following his guilty plea to illegal reentry after having been convicted of an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal,
Olivera-Hernandez contends that the district court erred in calculating his advisory
Sentencing Guidelines range by applying a 10-level enhancement rather than an 8-level
enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(3) (2018). We affirm.
Rather than review the merits of Olivera-Hernandez’s challenge to the calculation
of his Guidelines range, “we may proceed directly to an assumed error harmlessness
inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal
quotation marks omitted). “To apply this assumed error harmlessness inquiry we require
(1) knowledge that the district court would have reached the same result even if it had
decided the [G]uidelines issue the other way and (2) a determination that the sentence
would be [substantively] reasonable even if the [G]uidelines issue had been decided in the
defendant’s favor.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (internal
quotation marks omitted). An error will be deemed harmless only when we are “certain”
that these inquiries are met. United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012).
Here, the district court stated that it would have imposed the same 46-month
sentence even if it had made a mistake in calculating Olivera-Hernandez’s Guidelines
range. We thus conclude that the first requirement of the assumed error harmlessness
inquiry is satisfied. See Gomez-Jimenez, 750 F.3d at 383.
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Next, we must assess whether Olivera-Hernandez’s sentence would be substantively
reasonable even if the district court had sustained his objection to the 10-level enhancement
under USSG § 2L1.2(b)(3)(A), and instead applied an 8-level enhancement under USSG
§ 2L1.2(b)(3)(B). Had the district court applied the 8-level enhancement,
Olivera-Hernandez’s Guidelines range would have been 37 to 46 months’ imprisonment
rather than 46 to 57 months’ imprisonment.
We are satisfied that the 46-month sentence imposed by the district court is
substantively reasonable even under an assumed Guidelines range of 37 to 46 months. *
Indeed, the district court adequately explained why a 46-month sentence was necessary
using the 18 U.S.C. § 3553(a) factors. See United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010) (explaining that substantive reasonableness review requires an
examination of “the totality of the circumstances to see whether the sentencing court
abused its discretion in concluding that the sentence it chose satisfied the standards set forth
in § 3553(a)”). In particular, the district court emphasized that Olivera-Hernandez had
three prior felony convictions for indecent liberties with a child and that he reentered the
United States shortly after being removed from this country in 2017. The district court
also determined that a 46-month sentence was necessary to discourage Olivera-Hernandez
from again unlawfully entering the United States—which he has done on three occasions—
*
Notably, Olivera-Hernandez’s 46-month sentence is within the Guidelines range
that he asserts is proper. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014)
(recognizing that within-Guidelines-range sentence is presumptively substantively
reasonable).
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and to promote respect for the law. Because Olivera-Hernandez’s 46-month sentence is
supported by the district court’s consideration of the § 3553(a) factors, we conclude that
the sentence is substantively reasonable.
For those reasons, we are satisfied that any Guidelines calculation error in these
proceedings was harmless. See McDonald, 850 F.3d at 645. Accordingly, we affirm the
district court’s judgment. 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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