United States v. Juan Perez-Limon

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4782

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JUAN PEREZ-LIMON, a/k/a Rodrigo Aguilar Tlaczani,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cr-00028-REP-1)

Submitted: April 18, 2012 Decided: May 7, 2012

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Juan Perez-Limon appeals the forty-six-month sentence

imposed following his guilty plea to illegal reentry after

conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2006). On appeal, Perez-Limon argues that

the district court imposed a substantively unreasonable

sentence. We affirm.

We review a sentence imposed by a district court for

reasonableness, applying a deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 46, 51 (2007);

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). We

first examine the sentence for “significant procedural error.”

Gall, 552 U.S. at 51. If we find a sentence procedurally

reasonable, we must consider its substantive reasonableness,

taking into account the totality of the circumstances. United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). On appeal,

we presume a within-Guidelines sentence is substantively

reasonable. United States v. Bynum, 604 F.3d 161, 168-69 (4th

Cir. 2010). “Even if we would have reached a different

sentencing result on our own, this fact alone is ‘insufficient

to justify reversal of the district court.’” Pauley, 511 F.3d

at 474 (quoting Gall, 552 U.S. at 51).

Perez-Limon does not challenge the procedural

reasonableness of his sentence; instead he argues that the

2
district court imposed an unreasonable sentence because (1) the

Guidelines calculation placed too much weight on a prior

conviction; (2) his minimal criminal history warranted a shorter

sentence; and (3) the illegal reentry Guidelines were not based

on empirical evidence. Perez-Limon’s first two claims are

meritless, because they essentially ask this court to substitute

our judgment for that of the district court. The district court

clearly considered Perez-Limon’s arguments for a downward

variance, and we will defer to its judgment that a

forty-six-month sentence was appropriate. See Pauley, 511 F.3d

at 474.

Perez-Limon also argues that the within-Guidelines

Sentence is not entitled to this court’s presumption of

reasonableness because the sixteen-level enhancement he received

is not based on empirical data as required by Kimbrough v.

United States, 552 U.S. 85 (2007). Kimbrough, however, did not

require district courts to consider the presence or absence of

empirical data underlying the Guidelines, United States v.

Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012), nor did it

require appellate courts to discard the presumption of

reasonableness for sentences “based on non-empirically grounded

Guidelines,” United States v. Mondragon-Santiago, 564 F.3d 357,

366 (5th Cir. 2010). Thus, we conclude that Perez-Limon’s

3
sentence is entitled to a presumption of substantive

reasonableness.

Because Perez-Limon did not rebut the reasonableness

presumption, 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