UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4308
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AURELIO MARTINEZ-MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00346-TDS-1)
Submitted: November 14, 2011 Decided: November 22, 2011
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aurelio Martinez-Martinez (“Martinez”) pled guilty to
illegal reentry after removal as a convicted felon, in violation
of 8 U.S.C. § 1326(a), (b)(1) (2006). The district court
sentenced him to sixty months’ imprisonment, a variance of three
months above the Guidelines range. On appeal, Martinez
challenges the procedural and substantive reasonableness of his
sentence. We affirm.
Martinez first contends that the district court
procedurally erred by failing to address his nonfrivolous
arguments for a sentence at or below the Guidelines range. This
court reviews a sentence, “whether inside, just outside, or
significantly outside the Guidelines range[] under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. “Procedural reasonableness evaluates the method used to
determine a defendant’s sentence.” United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). We must assess
whether the district court properly calculated the advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
2
(“[A]n individualized explanation must accompany every
sentence.”).
Our review of the sentencing transcript leads us to
conclude that the district court considered and rejected
Martinez’s arguments for a sentence at or below the Guidelines
range based upon his history of substance abuse, the over-
representation of his criminal history, and his cultural
assimilation. Martinez correctly notes that the district court
did not address explicitly his request for a downward departure
or variance based upon a sentencing disparity between defendants
sentenced in fast-track jurisdictions and those who were not. 1
See 18 U.S.C. § 3553(a)(6); U.S. Sentencing Guidelines Manual
§ 5K3.1, p.s. (2010). However, a sentencing court need not
“robotically tick through § 3553(a)’s every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006); see Perez-
Pena, 453 F.3d at 242-44 (holding that sentence disparity
between defendants in fast-track and non-fast-track
jurisdictions is not “unwarranted” within meaning of
§ 3553(a)(6)). Because the district court thoroughly explained
its reasons for the sentence imposed, we conclude that the
district court committed no procedural error.
1
See United States v. Perez-Pena, 453 F.3d 236, 238 (4th
Cir. 2006) (describing fast-track program).
3
Because there is no procedural error, we next review
the substantive reasonableness of Martinez’s sentence by
“examin[ing] 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).” Mendoza-Mendoza, 597 F.3d at 216. “Where, as here,
the district court decides that a sentence outside the advisory
range is appropriate, [the court] ‘must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” United
States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (quoting
Gall, 552 U.S. at 50). “A major departure from the advisory
range ‘should be supported by a more significant justification
than a minor one.’” Id. (quoting Gall, 552 U.S. at 50). Even
if we would have imposed a different sentence, that fact alone
will not justify vacatur of the district court’s sentence.
Gall, 552 U.S. at 51.
Martinez challenges the district court’s decision not
to vary downward on the basis of alleged sentencing disparities
resulting from the availability of fast-track programs in other
jurisdictions. He questions whether the Supreme Court’s
decision in Kimbrough v. United States, 552 U.S. 85 (2007),
calls Perez-Pena into question and relies on authority from
another circuit as support for his argument that courts may
4
consider fast-track disparity in the § 3553(a) analysis. Even
assuming, without deciding, that district courts may consider a
possible sentencing disparity based upon the absence of a fast-
track program, the record in this case demonstrates that the
district court rejected Martinez’s arguments.
In its explanation supporting the imposition of a
three-month upward variance, the district court considered the
totality of the circumstances and found that Martinez repeatedly
reentered the United States without permission, had not been
deterred from such action by his prior sentences, and had
committed a felony drug trafficking offense after the last
illegal reentry. The court acknowledged Martinez’s motivation
in returning to the United States but noted that such motivation
did not excuse his illegal reentry. Thus, the district court’s
findings indicate that the court would not have downwardly
departed or varied from the Guidelines range under the
circumstances of this case. 2
Next, Martinez asserts that his sentence is
substantively unreasonable because the district court did not
consider his cultural assimilation and his history of substance
2
To the extent Martinez claims that he would have qualified
for a fast-track disposition, we conclude that the record belies
his claim. See United States v. Ramirez, 652 F.3d 751, 757-58
(7th Cir. 2011) (discussing requirements to qualify for fast-
track disposition); see Perez-Pena, 453 F.3d at 239 (same).
5
abuse. 3 The district court recognized that Martinez moved to the
United States with his family when he was eleven years old, had
lived in the United States for eight years before being deported
for the first time, and had a history of substance abuse.
Although the court noted that Martinez had family in North
Carolina and wanted to support his children, the court balanced
those factors against his illegal reentry into the United States
on five prior occasions, his commission of a felony drug
trafficking offense, and his failure to be deterred by prior
sentences for illegal reentry. We therefore conclude that the
district court adequately tied its decision to vary upward three
months to the § 3553(a) factors and that Martinez’s sentence is
substantively reasonable.
Accordingly, we affirm Martinez’s sentence. 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
3
Although he also asserts that the district court failed to
consider the over-representation of his criminal history,
Martinez concedes that he is not entitled to relief on this
claim.
6