UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENITO HERNANDEZ HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00023-MR-1)
Submitted: October 31, 2011 Decided: November 30, 2011
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela Parrott, Acting Executive Director, Matthew Segal,
Assistant Federal Defender, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benito Hernandez Hernandez pled guilty to illegally
reentering the United States, after being deported in violation
of 8 U.S.C. § 1326(a) (2006), and was sentenced to 120 months of
imprisonment. On appeal Hernandez raises three issues, whether:
(1) his sentence was unreasonable; (2) the district court
plainly erred by failing to comply with 18 U.S.C.A. § 3006A
(West Supp. 2011); and (3) his sentence exceeded the maximum
sentence authorized by the indictment and his guilty plea under
§ 1326(a), in violation of the Fifth and Sixth Amendments. For
the reasons that follow, we affirm.
We review a sentence imposed by a district court for
reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 46 (2007); United States v.
Lynn, 592 F.3d 572, 578–79 (4th Cir. 2010) (abuse of discretion
standard of review applicable when defendant properly preserves
a claim of sentencing error in district court “[b]y drawing
arguments from [18 U.S.C.] § 3553 [(2006)] for a sentence
different than the one ultimately imposed”). We begin by
reviewing the sentence for significant procedural error,
including such errors as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
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adequately explain the chosen sentence--including an explanation
for any deviation from the Guidelines.” Gall, 552 U.S. at 51.
We hold that the district court reasonably based its
upward variance from an advisory Sentencing Guidelines range of
51-63 months on a variety of § 3553(a) factors and adequately
explained its decision to do so. The district court was faced
with a recalcitrant defendant who had been deported five times
in a two-year period and despite his young age had attained the
highest criminal history category.
Because Hernandez failed to object to the district
court’s ruling that he reimburse the Government for his
appointed counsel, under 18 U.S.C.A. § 3006A, we only review
that matter for plain error. Although the district court failed
to make the financial findings necessary to order reimbursement,
Hernandez has not met the demanding burden of showing that
decision was plain error. See United States v. Olano, 507 U.S.
725, 732-35 (1993) (providing test for plain error; noting that
appellants bear the burden of proof with respect to prejudice of
their rights).
Hernandez concedes that his last argument is barred by
the Supreme Court’s opinion in Almendarez-Torres v. United
States, 523 U.S. 224, 233-35 (1998). Accordingly, we affirm
Hernandez’s conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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