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United States v. Santos Sevilla, 12-4623 (2013)

Court: Court of Appeals for the Fourth Circuit Number: 12-4623 Visitors: 11
Filed: Jan. 10, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4623 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SANTOS NEFTALI MONTES SEVILLA, Defendant -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 Affirmed by unpublished per curiam opinion. L
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                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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-

                                           2
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

                                               3
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




                                         4
adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.

                                                                 AFFIRMED




                                     5

Source:  CourtListener

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