United States of America v. Martin Kafka-Banderas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5211
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARTIN KAFKA-BANDERAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (CR-05-29)
Submitted: September 28, 2006 Decided: October 4, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Martin Kafka-Banderas pled guilty to illegally reentering
the United States after being deported, 8 U.S.C.A. § 1326(a),
(b)(2) (West 2005), and was sentenced to seventy-seven months
imprisonment. He appeals, arguing that his sentence is
unreasonable because the district court refused to rely on the
absence of a fast-track program as a basis for sentencing him below
the guidelines range. We affirm.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound
by the range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in
determining a sentence post-Booker, sentencing courts still are
required to calculate and consider the guideline range prescribed
thereby as well as the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2005). Id. We will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. A sentence imposed within the properly
calculated guidelines range is presumptively reasonable. United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006).
We find that the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Kafka-Banderas only after

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considering the factors set forth in § 3553(a), rejecting his
argument that he should be sentenced below the guidelines range
based on the absence of a fast-track program. We find the district
court’s decision was not unreasonable. See United States v. Perez-
Pena, 453 F.3d 236 (4th Cir. 2006) (holding that the sentence
disparity between a non-fast-track defendant and one who received
a fast-track sentence is not “unwarranted” within the meaning of 18
U.S.C. § 3553(a)(6)).
Because the district court appropriately treated the
guidelines as advisory, and properly calculated and considered the
guideline range and the relevant § 3553(a) factors, we find Kafka-
Banderas’ sentence reasonable. 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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