Filed: Feb. 07, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4661 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HERIBERTO ORTIZ-MERCADO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00361-BO-1) Submitted: January 20, 2012 Decided: February 7, 2012 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNa
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4661 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HERIBERTO ORTIZ-MERCADO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00361-BO-1) Submitted: January 20, 2012 Decided: February 7, 2012 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNam..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4661
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HERIBERTO ORTIZ-MERCADO,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00361-BO-1)
Submitted: January 20, 2012 Decided: February 7, 2012
Before WILKINSON, NIEMEYER, and MOTZ, 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Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heriberto Ortiz-Mercado pled guilty to possession of
contraband in prison, in violation of 18 U.S.C. § 1791(a)(2)
(2006). The district court sentenced Ortiz-Mercado to two
months’ imprisonment, to run consecutively to the sentence he
was serving at the time of his offense. Ortiz-Mercado appeals,
arguing that his sentence is substantively unreasonable.
Finding the sentence substantively reasonable, we affirm.
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States,
552 U.S.
38, 51 (2007). If we find the sentence procedurally reasonable, *
we review the substantive reasonableness of the sentence,
“taking into account the totality of the circumstances.” United
States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (internal
quotation marks omitted). A sentencing court must “impose a
sentence sufficient, but not greater than necessary, to comply
with the purposes [of sentencing].” 18 U.S.C. § 3553(a) (2006).
“Even if we would have reached a different sentencing result on
our own, this fact alone is ‘insufficient to justify reversal of
*
Ortiz-Mercado does not challenge the procedural
reasonableness of his sentence. See Edwards v. City of
Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting that
party’s failure to raise issue in opening brief results in
abandonment of issue).
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the district court.’”
Pauley, 511 F.3d at 474 (quoting
Gall,
552 U.S. at 51).
After a review of the record, we conclude that the
district court’s sentence was substantively reasonable. The
court considered arguments from both parties regarding
mitigating and aggravating sentencing factors, and it explicitly
accounted for Ortiz-Mercado’s serious illness in announcing its
sentence. The district court did not act unreasonably in
considering the need to punish Ortiz-Mercado’s federal offense
separately from administrative sanctions assessed by prison
officials. Ultimately, we conclude the brief sentence imposed
was not disproportionate with the § 3553(a) factors as a whole,
and the district court’s decision to impose a consecutive
sentence amounting to one-third of the statutory maximum did not
constitute an abuse of discretion.
Accordingly, we affirm the judgment of the district
court. 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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