542 F. App'x 259

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo Villalon HERNANDEZ, Defendant-Appellant.

No. 13-4120.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 10, 2013.

Decided: Oct. 17, 2013.

Theresa A. Kennedy, Law Offices of Theresa A. Kennedy, LLC, Washington, New Jersey, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Ap-pellee.

Before SHEDD, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Gerardo Villalon Hernandez pleaded guilty to illegally reentering the United States after having previously been removed following a conviction for a felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). The district court sentenced Hernandez to fifty-seven months of imprisonment and he now appeals. Finding no error, we affirm.

Hernandez argues that the sentence is unreasonable because the district court *260failed to explicitly consider a sentence of probation. We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.2009). This review includes consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Lynn, 592 F.3d 572, 575 (4th Cir.2010). In this case, Hernandez challenges only the procedural reasonableness of his sentence. In determining whether a sentence is procedurally reasonable, we examine the sentence for “significant procedural error,” including “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [ (2006) ] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence^]” Gall, 552 U.S. at 51, 128 S.Ct. 586. We will presume on appeal that a sentence within a properly calculated advisory Guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.2007); see Rita v. United States, 551 U.S. 338, 346-56, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (upholding presumption of reasonableness for within-Guidelines sentence). We have thoroughly reviewed the record and conclude that the sentence is procedurally 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.

United States v. Hernandez
542 F. App'x 259

Case Details

Name
United States v. Hernandez
Decision Date
Oct 17, 2013
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542 F. App'x 259

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United States

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