US v. Aurelio Martinez-Martinez, No. 11-4308 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AURELIO MARTINEZ-MARTINEZ, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:10-cr-00346-TDS-1) Submitted: November 14, 2011 Decided: November 22, 2011 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Aurelio Martinez-Martinez ( Martinez ) pled guilty to illegal reentry after removal as a convicted felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district court sentenced him to sixty months imprisonment, a variance of three months above the Guidelines range. On appeal, Martinez challenges the procedural and substantive reasonableness of his sentence. We affirm. Martinez procedurally first erred by contends failing that to the address district his nonfrivolous arguments for a sentence at or below the Guidelines range. court reviews a sentence, whether inside, just court This outside, or significantly outside the Guidelines range[] under a deferential abuse-of-discretion standard. 38, 41 (2007). Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. 51. Id. at Procedural reasonableness evaluates the method used to determine a defendant s sentence. United States v. Mendoza- Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). whether the Guidelines district range, court considered properly the 18 We must assess calculated U.S.C. the advisory § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) 2 ( [A]n individualized explanation must accompany every sentence. ). Our review of the sentencing transcript leads us to conclude that the district court considered and rejected Martinez s arguments for a sentence at or below the Guidelines range based upon representation assimilation. his of history his of criminal substance history, abuse, and the his over- cultural Martinez correctly notes that the district court did not address explicitly his request for a downward departure or variance based upon a sentencing disparity between defendants sentenced in fast-track jurisdictions and those who were not. 1 See 18 U.S.C. § 3553(a)(6); U.S. Sentencing Guidelines Manual § 5K3.1, p.s. (2010). However, a sentencing court need robotically tick through § 3553(a) s every subsection. not United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006); see PerezPena, 453 between F.3d at 242-44 defendants in that fast-track and non-fast-track § 3553(a)(6)). Because the district court thoroughly explained for the sentence imposed, within disparity is reasons unwarranted sentence jurisdictions its not (holding we meaning conclude that of the district court committed no procedural error. 1 See United States v. Perez-Pena, 453 F.3d 236, 238 (4th Cir. 2006) (describing fast-track program). 3 Because there is no procedural error, we next review the substantive reasonableness of Martinez s sentence by examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence § 3553(a). it chose satisfied the standards Mendoza-Mendoza, 597 F.3d at 216. set forth in Where, as here, the district court decides that a sentence outside the advisory range is appropriate, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (quoting Gall, 552 U.S. at 50). A major departure from the advisory range should be supported by a more significant justification than a minor one. Id. (quoting Gall, 552 U.S. at 50). Even if we would have imposed a different sentence, that fact alone will not justify vacatur of the district court s sentence. Gall, 552 U.S. at 51. Martinez challenges the district court s decision not to vary downward on the basis of alleged sentencing disparities resulting from the availability of fast-track programs in other jurisdictions. decision calls in questions Kimbrough Perez-Pena another He circuit into as v. whether United question support for 4 States, the Supreme 552 and relies on his argument Court s U.S. (2007), 85 authority that courts from may consider fast-track disparity in the § 3553(a) analysis. Even assuming, without deciding, that district courts may consider a possible sentencing disparity based upon the absence of a fasttrack program, the record in this case demonstrates that the district court rejected Martinez s arguments. In its explanation supporting the imposition of a three-month upward variance, the district court considered the totality of the circumstances and found that Martinez repeatedly reentered the United States without permission, had not been deterred from committed a such felony illegal reentry. action drug by his prior trafficking sentences, offense after and the had last The court acknowledged Martinez s motivation in returning to the United States but noted that such motivation did not excuse his illegal reentry. findings indicate departed or that varied the from court the Thus, the district court s would not Guidelines have range downwardly under the sentence is circumstances of this case. 2 Next, Martinez asserts that his substantively unreasonable because the district court did not consider his cultural assimilation and his history of substance 2 To the extent Martinez claims that he would have qualified for a fast-track disposition, we conclude that the record belies his claim. See United States v. Ramirez, 652 F.3d 751, 757-58 (7th Cir. 2011) (discussing requirements to qualify for fasttrack disposition); see Perez-Pena, 453 F.3d at 239 (same). 5 abuse. 3 The district court recognized that Martinez moved to the United States with his family when he was eleven years old, had lived in the United States for eight years before being deported for the Although first the time, court and noted had a that history Martinez of substance had family in abuse. North Carolina and wanted to support his children, the court balanced those factors against his illegal reentry into the United States on five prior occasions, his commission of a felony drug trafficking offense, and his failure to be deterred by prior sentences for illegal reentry. We therefore conclude that the district court adequately tied its decision to vary upward three months to the § 3553(a) factors and that Martinez s sentence is substantively reasonable. Accordingly, dispense with oral we affirm argument Martinez s because the sentence. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3 Although he also asserts that the district court failed to consider the over-representation of his criminal history, Martinez concedes that he is not entitled to relief on this claim. 6
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