UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4623
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTOS NEFTALI MONTES SEVILLA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:12-cr-00228-HMH-1)
Submitted: December 14, 2012 Decided: January 10, 2013
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Max B. Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Santos Neftali Montes Sevilla (“Montes Sevilla) pled
guilty to one count of unlawfully entering the country after
having been deported subsequent to a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). He was sentenced to twenty-seven months’ imprisonment,
the low end of the properly calculated Guidelines. On appeal,
Montes Sevilla contends the district court committed procedural
error by not adequately explaining the sentence. We affirm.
This court reviews a sentence for reasonableness under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A reasonableness review
includes both procedural and substantive components. Id. A
sentence is procedurally reasonable where the district court
committed no significant procedural errors, such as improperly
calculating the Guidelines range, failing to consider the 18
U.S.C. § 3553(a) (2006) factors, or insufficiently explaining
the selected sentence. United States v. Boulware, 604 F.3d 832,
837-38 (4th Cir. 2010). The substantive reasonableness of a
sentence is assessed in light of the totality of the
circumstances. Gall, 552 U.S. at 51. While a sentence may be
substantively unreasonable if the § 3553(a) factors do not
support the sentence, “[r]eviewing courts must be mindful that,
regardless of ‘the individual case,’ the ‘deferential abuse-of-
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discretion standard of review . . . applies to all sentencing
decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall,
552 U.S. at 52). Moreover, a sentence that falls within a
properly calculated Guidelines range is presumptively
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
A sentencing court has the obligation to provide an
individualized explanation for the sentence imposed. However,
it need not go through every subsection in 18 U.S.C. § 3553(a),
“particularly when imposing a within-Guidelines sentence.”
United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011)
(internal quotation marks omitted). In fashioning a sentence,
the district court is instructed to allow the parties “to argue
for what they believe to be an appropriate sentence and consider
those arguments in light of the” § 3553(a) sentencing factors.
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010).
The court is statutorily required to state its reasons for
imposing a particular sentence. It must provide enough
information to show the appellate court that it considered the
parties’ arguments and that it has a reasoned basis for
exercising its own authority. Id.
At sentencing, Montes Sevilla’s counsel noted the
Appellant’s age when he committed the predicate felony offense
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and that he will be deported once he has finished serving his
sentence. However, counsel never requested a particular
sentence, much less a sentence below the Guidelines.
Even if the district court did not give a sufficient
explanation for the sentence imposed, as is argued in this case,
this court does not need to vacate the sentence. To preserve a
challenge for this type of procedural error, counsel must make
arguments based in § 3553(a) “for a sentence different than the
one ultimately imposed.” Powell, 650 F.3d at 395 (internal
quotation marks omitted).
Because Montes Sevilla did not argue for a sentence
different than the one imposed, review is for plain error. See
id. at 395. In order to meet this standard, Montes Sevilla must
show that, “absent the error, a different sentence might have
been imposed.” United States v. Hernandez, 603 F.3d 267, 273
(4th Cir. 2010). He has failed to do that. There is nothing in
the record to suggest that even if the court erred by not giving
a fuller explanation of the sentence, that absent the error,
Montes Sevilla would have received a different sentence.
Accordingly, because Montes Sevilla failed to
establish plain error, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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