UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4057

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HECTOR RAMIREZ-CORTEZ, a/k/a Hector Ramirez, a/k/a Juan 

Gonzalez-Martinez,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:13-cr-00161-TDS-1)

Submitted: July 28, 2014 Decided: August 4, 2014

Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Mireille P. Clough, 

Assistant Federal Public Defender, Winston-Salem, North 

Carolina, for Appellant. Ripley Rand, United States Attorney, 

Kyle D. Pousson, Special Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Hector Ramirez-Cortez pleaded guilty, pursuant to a 

written plea agreement, to illegally re-entering the United 

States as an aggravated felon, in violation of 8 U.S.C. 

§ 1326(a), (b)(2) (2012), and received a sentence of forty-two 

months’ imprisonment. On appeal, Ramirez-Cortez challenges the 

reasonableness of his sentence. We affirm.

We review a sentence for reasonableness “under a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41, 51 (2007). Our review entails 

appellate consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In evaluating 

procedural reasonableness, we consider whether the district 

court properly considered the advisory nature of the Sentencing 

Guidelines, correctly calculated the defendant’s Guidelines 

range, gave the parties an opportunity to argue for an 

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) 

factors, and sufficiently explained the selected sentence. Id.

at 49-51. If there is no significant procedural error, we 

review the sentence for substantive reasonableness, “tak[ing] 

into account the totality of the circumstances.” Id. at 51. We 

presume a sentence within or below a properly calculated 

Guidelines range to be substantively reasonable. United States 

v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
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Ramirez-Cortez asserts that the district court 

procedurally erred in determining that it lacked authority to 

vary downward on the basis of the sentencing disparities that 

result from selected application of the fast-track program.∗ 

Ramirez-Cortez contends that the district court improperly 

concluded that it was bound by this court’s decision in United 

States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006), because the 

Supreme Court’s subsequent decision in Kimbrough v. United 

States, 552 U.S. 85 (2007) (holding that sentencing courts may 

“vary . . . based solely on policy considerations, including 

disagreements with the Guidelines”), allows a district court to 

consider such a sentencing disparity.

This court held in Perez-Pena that any sentencing 

disparity between defendants receiving fast track plea 

agreements and those who do not is “warranted as a matter of 

law,” because such disparities are sanctioned by Congress and 

the Sentencing Commission. 453 F.3d at 243 (internal quotation 

marks omitted). We have not revisited Perez-Pena in a 

 ∗ “‘Fast-tracking’ refers to a procedure that originated in 

states along the United States–Mexico border, where district 

courts experienced high caseloads as a result of immigration 

violations.” United States v. Perez–Pena, 453 F.3d 236, 238 

(4th Cir. 2006). In conformity with the fast-track practice, 

prosecutors seek to obtain pre-indictment guilty pleas by 

offering to move for a downward departure under U.S. Sentencing 

Guidelines Manual § 5K3.1, p.s.
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published, precedential decision since Kimbrough, and Perez-Pena

remains controlling in this circuit. 

Even if the district court had authority to consider 

this sentencing disparity, however, we conclude that its 

reliance on Perez-Pena was harmless. Under harmless error 

review, we will not reverse the court’s judgment when the error 

“did not have a substantial and injurious effect or influence on 

the result.” See United States v. Lynn, 592 F.3d 572, 585 (4th 

Cir. 2010) (internal quotation marks omitted). As the 

Government correctly asserts, the district court in this case 

specifically stated that, even if it had authority to do so, it 

would not grant a downward variance related to the lack of a 

fast-track plea offer in Ramirez-Cortez’s case.

Ramirez-Cortez also asserts that his sentence was 

substantively unreasonable because it was greater than necessary 

to accomplish the goals of 18 U.S.C. § 3553(a). The district 

court, however, fully considered Ramirez-Cortez’s cooperation 

with federal agents, his employment history, and the support of 

his family in granting a downward variance and imposing a fortytwo-month sentence. Because Ramirez-Cortez does not offer any 

additional factors to rebut the appellate presumption afforded 

his below-Guidelines sentence, we conclude that his sentence is 

substantively reasonable. See Susi, 674 F.3d at 289; United 

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
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Accordingly, we affirm the criminal judgment. 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