Filed: Jan. 04, 2017
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4252 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEOPOLDO ORTIZ-VELASCO, a/k/a Cesar Francisco Castillo, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:15-cr-00078-F-1) Submitted: December 16, 2016 Decided: January 4, 2017 Before MOTZ, DUNCAN, and FLOYD, Circuit Judges. Affirmed by unpublished per c
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4252 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEOPOLDO ORTIZ-VELASCO, a/k/a Cesar Francisco Castillo, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Fox, Senior District Judge. (4:15-cr-00078-F-1) Submitted: December 16, 2016 Decided: January 4, 2017 Before MOTZ, DUNCAN, and FLOYD, Circuit Judges. Affirmed by unpublished per cu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEOPOLDO ORTIZ-VELASCO, a/k/a Cesar Francisco Castillo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:15-cr-00078-F-1)
Submitted: December 16, 2016 Decided: January 4, 2017
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Jennifer C.
Leisten, Research and Writing Attorney, Raleigh, North Carolina,
for Appellant. John Stuart Bruce, United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leopoldo Ortiz-Velasco pled guilty to unlawful reentry
after deportation following conviction of an aggravated felony,
in violation of 8 U.S.C. § 1326(a), (b)(2) (2012), and was
sentenced to 24 months in prison. He now appeals, contending
that his sentence is procedurally and substantively
unreasonable. We disagree.
We review the reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” Gall v. United
States,
552 U.S. 38, 41 (2007). Procedural errors include the
district court’s “fail[ure] to adequately explain the chosen
sentence — including an explanation for any deviation from the
[Sentencing] Guidelines range.” United States v. Carter,
564
F.3d 325, 328 (4th Cir. 2009) (internal quotation marks
omitted). Although the court need not “robotically tick through
[18 U.S.C.] § 3553(a)’s every subsection,” United States v.
Johnson,
445 F.3d 339, 345 (4th Cir. 2006), it “must adequately
explain the chosen sentence to allow for meaningful appellate
review and to promote the perception of fair sentencing,”
Gall,
552 U.S. at 50. Even if the court imposes a within-Guidelines-
range sentence, “it must place on the record an individualized
assessment based on the particular facts of the case before it.”
Carter, 564 F.3d at 330 (internal quotation marks omitted).
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“Where the defendant or prosecutor presents nonfrivolous
reasons for imposing a different sentence than that set forth in
the advisory Guidelines, a district [court] should address the
party’s arguments and explain why [it] has rejected those
arguments.”
Id. at 328 (internal quotation marks omitted).
While “[t]he context surrounding a district court’s explanation
may imbue it with enough content for [us] to evaluate both
whether the court considered the § 3553(a) factors and whether
it did so properly,” United States v. Montes-Pineda,
445 F.3d
375, 381 (4th Cir. 2006), we “may not guess at the district
court’s rationale, searching the record for statements by the
Government or defense counsel or for any other clues that might
explain a sentence,”
Carter, 564 F.3d at 329-30.
Only if there are no significant procedural errors do we
consider the substantive reasonableness of the sentence, taking
into account “the totality of the circumstances.”
Gall, 552
U.S. at 51. We presume that a sentence within a properly
calculated Guidelines range is substantively reasonable, and
this presumption may be rebutted only “by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian,
756 F.3d 295,
306 (4th Cir. 2014).
The record establishes that the district court considered
and rejected Ortiz-Velasco’s arguments for a downward variance
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and sufficiently touched on the most relevant § 3553(a) factors
in fashioning the chosen sentence. Thus, we conclude that the
sentence imposed was procedurally reasonable. Additionally,
having reviewed the record, we hold that Ortiz-Velasco has not
made the showing necessary to rebut the presumption that his
within-Guidelines-range sentence is substantively reasonable.
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
this court and argument would not aid the decisional process.
AFFIRMED
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