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United States v. Rivera-Magana, 05-4455 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-4455 Visitors: 22
Filed: May 01, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4455 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus BONAFACIO RIVERA-MAGANA, a/k/a Bonasacio Magano Rivera, a/k/a Dominges Morales Rodolfo, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Senior District Judge. (CR-04-38) Submitted: April 27, 2006 Decided: May 1, 2006 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4455



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BONAFACIO   RIVERA-MAGANA,   a/k/a   Bonasacio
Magano Rivera, a/k/a Dominges Morales Rodolfo,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (CR-04-38)


Submitted: April 27, 2006                        Decided: May 1, 2006


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Nikita V. Mackey, MACKEY & ASSOCIATES, P.L.L.C., Charlotte, North
Carolina, for Appellant.   Gretchen C.F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Bonafacio Rivera-Magana pled guilty to one count of

illegal reentry of a deported alien, in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2000).     Rivera-Magana appeals, arguing that his

twenty-seven month sentence was unreasonable when considered in

light of all the factors in 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2005).   Finding no error, we affirm.

           After the Supreme Court's decision in United States v.

Booker, 
543 U.S. 220
(2005), a sentencing court is no longer bound

by the range prescribed by the sentencing guidelines.             See United

States v. Hughes, 
401 F.3d 540
, 546 (4th Cir. 2005).          However, in

determining a sentence post-Booker, sentencing courts are still

required to calculate and consider the applicable guideline range

as well as the factors set forth in 18 U.S.C.A. § 3553(a).           
Id. If the sentence
imposed is within the properly calculated guideline

range, it is presumptively reasonable. United States v. Green, 
436 F.3d 449
, 457 (4th Cir. 2006).

           Here,   Rivera-Magana’s      adjusted    offense       level    was

seventeen and the district court reduced his criminal history

category from III to II.            Rivera-Magana's twenty-seven month

sentence was within the guideline range of twenty-seven to thirty-

three months, and well within the statutory maximum of twenty

years. Although Rivera-Magana contends that the district court did

not   adequately   consider   the    sentencing   factors   set    forth    in


                                    - 2 -
§ 3553(a), the court heard argument about Rivera-Magana’s family

circumstances, and the court stated it had considered the nature

and circumstances of the offense.       The court need not “robotically

tick through § 3553(a)’s every subsection.”             United States v.

Johnson, ___ F.3d ___, 
2006 WL 893594
, *5 (4th Cir. Apr. 7, 2006).

Because   the   record   demonstrates   the   court’s   consideration   of

§ 3553(a), we find no error.

           Accordingly, we affirm Rivera-Magana's sentence.             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




                                 - 3 -

Source:  CourtListener

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