UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4758
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUAN ANTONIO ACEVEDO-HERRERA, a/k/a Luis Rivera,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:11-cr-00062-H-1)
Submitted: March 28, 2013 Decided: April 1, 2013
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Joshua L. Rogers, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Antonio Acevedo-Herrera pleaded guilty to one
count of illegal reentry by an aggravated felon, in violation of
8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to seventy
months’ imprisonment. He appeals, challenging his sentence,
alleging that the district court erred in denying his request
for a downward variance and contending the sentence is
substantively unreasonable. Finding no error, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We first review for significant
procedural errors, including whether the district court failed
to calculate or improperly calculated the Sentencing Guidelines
range, treated the Guidelines as mandatory, failed to consider
the 18 U.S.C. § 3553(a) (2006) factors, or failed to adequately
explain its chosen sentence. Id. To avoid procedural error,
the district court must make an “individualized assessment,”
wherein it applies the relevant § 3553(a) factors to the facts
of the case before it. United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). The district court also should address any
nonfrivolous arguments for an out-of-Guidelines sentence and
explain why it rejected those arguments. Id. If we find the
sentence procedurally reasonable, we then examine substantive
reasonableness, considering the totality of the circumstances.
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Gall, 552 U.S. at 51. If the sentence is within the Guidelines
range, this court applies a presumption of reasonableness.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010).
We find that Acevedo-Herrera’s sentence is both
procedurally and substantively reasonable. The district court
responded to defense counsel’s arguments for a below-Guidelines
sentence meaningfully and with specificity, and explained its
chosen sentence. Furthermore, Acevedo-Herrera presents no
evidence to rebut the presumption of reasonableness applicable
to his within-Guidelines sentence.
Accordingly, 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
this court and argument would not aid the decisional process.
AFFIRMED
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