United States of America v. Lucas Reyes Hernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUCAS REYES HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:13-cr-00013-FDW-1)
Submitted: January 28, 2015 Decided: February 6, 2015
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lucas Reyes Hernandez appeals his sentence following a
guilty plea to illegal reentry after having been deported
subsequent to an aggravated felony conviction, in violation of 8
U.S.C. § 1326(a), (b)(2) (2012). The district court sentenced
him to a forty-six month term of imprisonment. Hernandez argues
that the district court’s denial of his request for a downward
variance was based upon clearly erroneous factual findings and
that the sentence imposed is substantively unreasonable. We
affirm.
In resolving a challenge to a defendant’s sentence, we
begin by determining whether “the district court committed [a]
significant procedural error, such as . . . selecting a sentence
based on clearly erroneous facts.” Gall v. United States, 552
U.S. 38, 51 (2007). In denying Hernandez’s request for a
downward variance, the district court stated that Hernandez
could have been charged with a drug offense in federal court
despite having been convicted of a similar offense in state
court. Hernandez argues Justice Department policy does not
permit federal prosecutors to bring charges based on conduct
that has already been prosecuted in state court unless the state
prosecution leaves “a substantial federal interest . . .
demonstrably unvindicated.” U.S. Att’ys’ Manual § 9-2.031(A)
(2009). However, the record does not indicate whether

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Hernandez’s state prosecution involved drug quantities such that
his state sentence left a substantial federal interest
demonstrably unvindicated. Moreover, the district court stated
several other reasons for denying a variance. Therefore, we
conclude that the district court did not select its sentence
based on clearly erroneous facts and a significant procedural
error did not result.
Finding no procedural error, we review the district
court’s sentence for substantive reasonableness. Gall, 552 U.S.
at 51. We conduct this review under a “deferential abuse-of-
discretion standard,” considering “the totality of the
circumstances.” Id. at 41, 51. “Any sentence that is within or
below a properly calculated Guidelines range is presumptively
reasonable,” and this “presumption can only be rebutted by
showing that the sentence is unreasonable when measured against
the 18 U.S.C. § 3553(a) [(2012)] factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). We find that Hernandez has failed to rebut the
presumption that his within-Guidelines 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

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before this court and argument would not aid the decisional
process.
AFFIRMED

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