U.S. Court of Appeals for the Fourth Circuit, 2007

United States v. Cruz-Ochoa

United States v. Cruz-Ochoa
U.S. Court of Appeals for the Fourth Circuit · Decided May 11, 2007 · Motz, Niemeyer, Per Curiam, Williams
227 F. App'x 281

United States v. Cruz-Ochoa

Opinion

PER CURIAM:

Ronaldo Cruz-Ochoa, a citizen of El Salvador, pled guilty to unlawful reentry after deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2) (2000). The district court sentenced Cruz-Ochoa to fifty-seven months’ imprisonment. On appeal, Cruz-Ochoa argues the district court erred in failing to impose a variance sentence pursuant to 18 U.S.C. § 3553(a) (West 2000 & Supp. 2006). For the following reasons, we affirm.

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court is no longer bound by the range prescribed by the sentencing guidelines. However, in imposing a sentence post-Booker, courts still must calculate the applicable guideline range after making the appropriate findings of fact and consider the range in conjunction with other relevant factors under the guidelines and § 3553(a). United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, — U.S.-, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006). This court will affirm a post-Booker sentence if it “is within the statutorily prescribed range and is reasonable.” Id. at 433 (internal quotation marks and citation omitted). “[A] sentence within the proper advisory Guidelines range is presumptively reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).

Cruz-Ochoa submits that he offered substantial evidence of rehabilitation following his convictions that enhanced his criminal history category, and that his sentence is. longer than necessary to comply with the factors set forth in 18 U.S.C.A. § 3553(a). However, Cruz-Ochoa’s sentence was within the guideline range of *282 fifty-seven to seventy-one months and well within the twenty-year statutory maximum set forth in 8 U.S.C. § 1326(b)(2). Because the district court appropriately treated the guidelines as advisory, and properly calculated and considered the guideline range and the relevant § 3553(a) factors, in light of Cruz-Oehoa’s mitigation arguments, we find the sentence reasonable. See United States v. Green, 436 F.3d 449 (4th Cir.) (holding that a sentence within the properly calculated guidelines range is presumptively reasonable), cert. denied, — U.S.-, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006).

Accordingly, we affirm the district court’s judgment. 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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