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U.S. v. GOMEZ-ORTIZ, 12-5024. (2013)

Court: Court of Appeals for the Fourth Circuit Number: infco20130702092 Visitors: 7
Filed: Jul. 02, 2013
Latest Update: Jul. 02, 2013
Summary: UNPUBLISHED Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Israel Gomez-Ortiz (a native and citizen of El Salvador) pled guilty, without a written plea agreement, to illegally reentering the United States subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. 1326(a), (b) (2006). At sentencing, the district court applied a 16-level enhancement, pursuant to U.S. Sentencing Guidelines Manual ("USSG") 2L1.2(b)(1)(A)(i), based on tw
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UNPUBLISHED

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Jose Israel Gomez-Ortiz (a native and citizen of El Salvador) pled guilty, without a written plea agreement, to illegally reentering the United States subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b) (2006). At sentencing, the district court applied a 16-level enhancement, pursuant to U.S. Sentencing Guidelines Manual ("USSG") § 2L1.2(b)(1)(A)(i), based on two prior California state convictions for possession of crack cocaine for sale—an aggravated felony.* Gomez-Ortiz' total offense level, after a three-level reduction for acceptance of responsibility, was 21. With a criminal history category of V, Gomez-Ortiz' advisory Guidelines range was 70 to 87 months' imprisonment. After hearing defense counsel's arguments for a below-Guidelines sentence, the district court imposed an 84-month sentence. Gomez-Ortiz noted a timely appeal.

We review a sentence for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In determining the procedural reasonableness of a sentence, this court considers whether the district court properly calculated the defendant's Guidelines range, treated the Guidelines as advisory, considered the 18 U.S.C. § 3553(a) (2006), factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Gall, 552 U.S. at 51. A sentence imposed within the properly calculated Guidelines range is presumed reasonable by this court. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010), cert. denied, 131 S.Ct. 3078 (June 27, 2011).

Gomez-Ortiz concedes that the district court committed no procedural error. His sole claim on appeal is that the 16-level enhancement is substantively unreasonable. However, this Court has rejected the policy challenge advanced by Gomez-Ortiz. See United States v. Rivera-Santana, 668 F.3d 95, 101-102 (4th Cir. 2012). This Court has also rejected claims that application of the 16-level enhancement results in impermissible double-counting. See United States v. Crawford, 18 F.3d 1173, 1178-79 (4th Cir. 1994).

Therefore, we affirm Gomez-Ortiz' sentence. 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.

FootNotes


* Section 2L1.2(b)(1)(A)(i) provides for a 16-level increase if a defendant illegally reenters the United States after being convicted of a felony drug trafficking offense, for which he received at least thirteen months' imprisonment.
Source:  Leagle

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