United States of America v. Gerardo Villalon Hernandez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4120
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERARDO VILLALON HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00053-MR-1)
Submitted: September 10, 2013 Decided: October 17, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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 Appellee.
Unpublished opinions are not binding precedent in this circuit.

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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 failed 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 (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; 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

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sentence[.]” Gall, 552 U.S. at 51. 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
(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

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