UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4214

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GUSTAVO HERNANDEZ-LUNA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Malcolm J. Howard, 

Senior District Judge. (5:10-cr-00313-H-1)

Submitted: November 8, 2011 Decided: December 14, 2011

Before NIEMEYER, KING, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer P. 

May-Parker, Kristine L. Fritz, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gustavo Hernandez-Luna appeals from a sixty-month 

sentence imposed upon him pursuant to his guilty plea to illegal 

reentry by a convicted felon. The presentence report (“PSR”) 

recommended a base offense level of eight and a sixteen-level 

increase because Hernandez-Luna previously had been deported 

after sustaining a conviction for a crime of violence, namely 

aggravated assault. See U.S. Sentencing Guidelines Manual

§ 2L1.2 (2010) (“Section 2L1.2”). Hernandez-Luna moved for a 

variance sentence and a sentence at the low end of the 

Guidelines range (fifty-seven months), arguing that Section 

2L1.2 unreasonably increased his advisory range, failed to 

reflect the statutory sentencing factors, and did not exemplify 

the Sentencing Commission’s exercise of its characteristic 

institutional role. See Kimbrough v. United States, 552 U.S. 

85, 109-10 (2007) (holding that district courts are entitled to 

reject application of certain Guidelines based on disagreement 

with underlying policy). The district court denied HernandezLuna’s request, reasoning that, given the totality of his 

criminal record, the enhancement was not unreasonable. 

Hernandez-Luna argues on appeal that his sentence is both 

procedurally and substantively unreasonable. We affirm.

 
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We review a sentence imposed by the district court, 

“whether inside, just outside, or significantly outside the 

Guidelines range,” under a “deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This 

review entails appellate consideration of both the procedural 

and substantive reasonableness of the sentence. Id. at 51. 

In determining whether a sentence is procedurally 

reasonable, we first assess whether the district court properly 

calculated the defendant’s Guidelines range. Id. at 49, 51. We 

then consider whether the district court treated the Guidelines 

as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors 

and any arguments presented by the parties, selected a sentence 

based on “clearly erroneous facts,” or failed to explain 

sufficiently the selected sentence. Id. at 50-51; United States 

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “When rendering a 

sentence, the district court must make an individualized 

assessment based on the facts presented,” United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation 

marks and emphasis omitted), and must “adequately explain the 

chosen sentence to allow for meaningful appellate review and to 

promote the perception of fair sentencing,” Gall, 552 U.S. at 

50. “When imposing a sentence within the Guidelines, however, 

the [district court’s] explanation need not be elaborate or 

lengthy because [G]uidelines sentences themselves are in many 
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ways tailored to the individual and reflect approximately two 

decades of close attention to federal sentencing policy.” 

United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) 

(internal quotation marks omitted). 

If the sentence is free of significant procedural 

error, we review the substantive reasonableness of the sentence, 

“tak[ing] into account the totality of the circumstances.” 

Gall, 552 U.S. at 51. If the sentence is within the appropriate 

Guidelines range, we apply a presumption on appeal that the 

sentence is reasonable. United States v. Mendoza-Mendoza, 597 

F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted 

only by showing “that the sentence is unreasonable when measured 

against the § 3553(a) factors.” United States v. Montes-Pineda, 

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks 

omitted). 

Hernandez-Luna argues that his sentence is 

procedurally unreasonable because the district court failed to 

address his argument that Section 2L1.2 was an unreasonable 

enhancement in and of itself, without application to his 

specific circumstances. Hernandez-Luna contends that the 

district court only addressed whether the application of the 

Guidelines was reasonable based upon his individual 

characteristics and did not address his actual claim as to 

whether the Guideline was generally inappropriate as a policy 
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matter. “Where the defendant or prosecutor presents 

nonfrivolous reasons for imposing a different sentence than that 

set forth in the advisory Guidelines, a district [court] should 

address the party’s arguments and explain why [it] has rejected 

those arguments.” Carter, 564 F.3d at 328. 

We conclude that the district court properly 

considered Hernandez-Luna’s arguments in the context of his 

individual characteristics. The court read Hernandez-Luna’s 

memorandum and heard additional oral argument. There is no 

indication that the court misunderstood the policy arguments 

being made or its discretion to impose a variance sentence on 

policy grounds. In fact, the district court stated that, had 

Hernandez-Luna’s prior conviction been an aberration, the court 

might have been more inclined to agree with him that the 

Guidelines range was too harsh. See United States v. 

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (noting 

that district court’s consideration of policy decisions 

underlying the Guidelines is part of the § 3553(a) analysis).1

 1 Hernandez-Luna argues without support on appeal that 

“[t]he sixteen-level enhancement under § 2L1.2 is either a 

reasonable increase or it is not. . . . The reasonableness . . . 

does not depend upon the defendant to whom it is being applied.” 

Appellant’s Br. at 15. However, the district court is required 

to impose an individualized sentence based on individualized 

reasoning. Thus, the district court is free to find the 

Guideline appropriate is certain cases and not in others. See

United States v. Mitchell, 624 F.3d 1023, 1028 (9th Cir. 2010) 

 

(Continued)
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Accordingly, the court, as required, provided individualized 

reasoning for Hernandez-Luna’s sentence and thus there was no 

procedural error.

Hernandez-Luna also argues that his sentence is 

substantively unreasonable. Specifically, he contends that, as 

a result of the application of Section 2L1.2, his offense level

and resulting Guidelines range overrepresented the seriousness 

of his criminal conduct and did not comport with § 3553(a)’s 

overall goal that a sentence not be excessive. He also contends 

that the Guideline is arbitrary and was not adopted after 

careful consideration and research. 

Hernandez-Luna fails to overcome the appellate 

presumption that his sixty-month sentence is substantively 

reasonable. He has not demonstrated on appeal that the district 

court erred in its application of Section 2L1.2 and does not 

direct this court to any authority for the proposition that a 

proper application of this Guideline produces a sentence 

unintended by Congress. Further, his policy argument, even if 

accepted in other cases, would not require the district court to 

impose a sentence below the Guidelines range. See United 

 

(noting that sentencing judge is empowered to disagree with 

particular Guidelines “when the circumstances in an individual 

case warrant”), cert. denied, 131 S. Ct. 1542 (2011).
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States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007); see also

United States v. Lopez, 650 F.3d 952, 967 (3d Cir. 2011) 

(rejecting similar Section 2L1.2 challenge and noting that, even 

where policy arguments have been found valid, rejection of 

Guidelines range is not required when court does not, in fact, 

have a disagreement with the Guideline at issue); United 

States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (holding 

that Section 2L1.2 was properly adopted pursuant to usual 

procedures and rejecting policy challenge where the district 

court arrived at the sentence after application of § 3553 

factors). Hernandez-Luna’s sentence was near the bottom of his 

presumptively reasonable Guidelines range.2

Because Hernandez-Luna fails to establish that the 

district court abused its discretion in imposing sentence, we 

affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately

 Accordingly, we 

conclude that, under the totality of the circumstances, 

Hernandez-Luna fails to establish that his sentence is 

substantively unreasonable. 

 2 Despite Hernandez-Luna’s contention, a Guidelines range 

calculated under Section 2L1.2 is still presumptively 

reasonable. See Mondragon-Santiago, 564 F.3d at 366.
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presented in the materials before the court and argument would

not aid the decisional process.

AFFIRMED