UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS FERNANDO PEREZ-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00306-BR-1)
Submitted: November 22, 2011 Decided: January 12, 2012
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dhamian Blue, BLUE, STEPHENS & FELLERS, LLP, 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Unpublished opinions are not binding precedent in this circuit.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:
Luis Fernando Perez-Gonzalez pled guilty to illegally
reentering the United States after being removed as an
aggravated felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). The district court imposed a seventy-eight month
sentence. The sole issue Perez-Gonzalez raises on appeal is a
challenge to the reasonableness of his sentence. For the
following reasons, we affirm the district court’s judgment.
This court reviews sentences for reasonableness under
an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). After determining whether the district court properly
calculated the defendant’s advisory Guidelines range, we must
decide whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Lynn, 592 F.3d at 575-76; see United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). Properly preserved claims of
procedural error are subject to harmless error review. Lynn,
592 F.3d at 576. If the sentence is free of significant
procedural error, the appellate court reviews the substantive
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reasonableness of the sentence. Id. at 575; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Perez-Gonzalez first contends his sentence is
procedurally unreasonable because the district court did not
properly consider the § 3553(a) factors and provide him an
individualized sentence. We have carefully reviewed the
sentencing transcript and conclude that the district court
meaningfully considered Perez-Gonzalez’s argument for a downward
departure or variance and denied it based on several relevant
§ 3553(a) factors, including Perez-Gonzalez’s history,
characteristics, and the nature and circumstances of his
offense, 18 U.S.C. § 3553(a)(1); the need to promote respect for
the law and provide just punishment, 18 U.S.C. § 3553(a)(2)(A);
the need to afford adequate deterrence in light of Perez-
Gonzalez’s history of recidivism, 18 U.S.C. § 3553(a)(2)(B); and
the need to protect the public from Perez-Gonzalez’s further
crimes, 18 U.S.C. § 3553(a)(2)(C). We further conclude the
district court’s explanation of its chosen sentence was
sufficient “to satisfy the appellate court that [it had]
considered the parties’ arguments and [had] a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356 (2007).
Next, Perez-Gonzalez maintains the addition of two
criminal history points under U.S. Sentencing Guidelines Manual
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(“USSG”) § 4A1.1(d) (2010) resulted in the overrepresentation of
his criminal history. Section 4A1.1(d) authorizes the
additional points “if the defendant committed the instant
offense while under any criminal justice sentence,
including . . . escape status.” The record establishes, and
Perez-Gonzalez admits, he was subject to a California fugitive
warrant at the time of the instant offense. We therefore
conclude the application of § 4A1.1(d) was proper.
Finally, Perez-Gonzalez contests the substantive
reasonableness of his sentence. Where, as here, the sentence
imposed is within the appropriate Guidelines range, this court
may consider it presumptively reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). The
presumption may be rebutted by a showing “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
Perez-Gonzalez argues this court should not afford a
presumption of reasonableness to his within-Guidelines sentence
because the sixteen-level enhancement authorized by USSG
§ 2L1.2(b)(1)(A) was enacted without deliberation or empirical
support and that sentences based upon it should not be afforded
deference on appeal. We recently rejected the same argument in
United States v. Mendoza-Mendoza, 413 App’x 600, 602 & n.2 (4th
4
Cir.), cert. denied, 131 S. Ct. 3078 (2011), and do the same
here. Accord United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009) (rejecting similar argument). We further hold that
Perez-Gonzalez’s arguments do not otherwise overcome the
presumption of reasonableness afforded his within-Guidelines
sentence.
For the foregoing reasons, 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 the court and argument would not aid the
decisional process.
AFFIRMED
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