UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4431

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

PEDRO MARTINEZ-HERNANDEZ, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:07-cr-00287-BR-1) 

Submitted: January 27, 2010 Decided: February 11, 2010 

Before MICHAEL, KING, and SHEDD, 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Affirmed by unpublished per curiam opinion.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. George E. B. Holding, United States Attorney, 

Barbara D. Kocher, Assistant United States Attorney, Raleigh, 

North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Pedro Martinez-Hernandez appeals his seventy-one month 

prison sentence for illegally reentering the United States after 

having been convicted of an aggravated felony and deported, in 

violation of 8 U.S.C. § 1326(a)(2), (b)(2) (2006). On appeal, 

Martinez-Hernandez contends that his sentence at the high end of 

his advisory guideline range is unreasonable, because it 

resulted from application of the sixteen-level enhancement under 

U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(i) (2007), 

and because the district court considered an improper factor in 

selecting the sentence. We affirm. 

We review a sentence imposed by the district court 

under a deferential abuse-of-discretion standard. See Gall v. 

United States, 552 U.S. 38, 51 (2007). The first step in this 

review requires us to ensure that the district court committed 

no significant procedural error, such as improperly calculating 

the guideline range, failing to consider the 18 U.S.C. § 3553(a) 

(2006) factors, or failing to adequately explain the sentence. 

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We 

then consider the substantive reasonableness of the sentence 

imposed, taking into account the totality of the circumstances. 

Gall, 552 U.S. at 51. On appeal, we presume that a sentence 

within a properly calculated guideline range is reasonable. 

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). 

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Martinez-Hernandez, a citizen of Mexico who illegally 

entered the United States, has been deported from the United 

States three times. After being deported on September 26, 1998, 

he illegally returned and was convicted of possessing narcotic 

drugs for sale on September 16, 1999. After being deported on 

December 20, 1999, he illegally returned and was convicted on 

July 10, 2000, of sale of narcotic drugs. After serving his 

prison sentence, he was deported on June 25, 2003, and illegally 

returned on November 1, 2003. On June 4, 2007, he was arrested 

for interfering with emergency communications in a domestic 

dispute. He was subsequently indicted and pled guilty to being 

found in the United States after having been convicted of an 

aggravated felony on July 10, 2000, and removed on June 25, 

2003. 

The probation officer determined Martinez-Hernandez’s 

base offense level under USSG § 2L1.2(a) was eight; sixteen 

levels were added under USSG § 2L1.2(b)(1)(A)(i) because he was 

deported after a drug trafficking offense conviction for which 

his sentence exceeded thirteen months; and he received a threelevel reduction for acceptance of responsibility. With a total 

offense level of twenty-one and criminal history category IV, 

his guideline range was fifty-seven to seventy-one months. He 

filed an objection to the sixteen-level enhancement based on 

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, 

3 
asserting the district court was prohibited from making factual 

findings to apply the enhancement. The district court overruled 

the objection and adopted the presentence report. 

Martinez-Hernandez requested a sentence at the low end 

or below his guideline range, arguing that there was less need 

for the district court to protect the public in fashioning a 

sentence because he would be returned to Mexico; he had tried to 

change his life when he returned to the United States the last 

time by working and taking care of his family; his children and 

fiance were relocating to Mexico and he did not wish to return 

to the United States; and deterrence would be accomplished by a 

sentence below the guideline range. The Government responded 

that based on Martinez-Hernandez’s record, deportation did not 

appear to protect the public at all. The Government also noted 

he had been a member of a street gang and requested that the 

district court impose a sentence within the guideline range. 

In explaining its sentence, the district court noted 

Martinez-Hernandez had been deported and “turned right around 

and came back”; and when he came back, he “violated the law by 

selling drugs and things of that nature.” The sentencing judge 

further commented that he had sympathy for people who came to 

the United States seeking employment, but that people like 

Martinez-Hernandez gave the people who came here legitimately a 

bad name. 

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On appeal, Martinez-Hernandez contends his sentence is 

unreasonable because the effect his behavior has on the public 

perception of a group of people, i.e., people coming to this 

country legitimately, is not one of the 18 U.S.C. § 3553(a) 

(2006) factors, and the district court should not have based any 

part of his sentence on such a ground. He further contends that 

the sixteen-level enhancement under USSG § 2L1.2(b)(1)(A)(i) 

makes his sentence unreasonable as it was “enacted by the 

Sentencing Commission with little deliberation or empirical 

justification”; resulted in a sentence that is greater than 

necessary to comply with the statutory purposes of punishment; 

and his sentence based on the enhancement is not entitled to a 

presumption of reasonableness on appeal. Martinez-Hernandez 

does not, however, contend that his guideline range was 

improperly calculated. 

While the district court was free to consider policy 

decisions behind the guidelines, including the presence or 

absence of empirical data, as part of its consideration of the 

§ 3553(a) factors in this case, see Kimbrough v. United States, 

552 U.S. 85 (2007); United States v. Mondragon-Santiago, 564 

F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009), 

Martinez-Hernandez did not make this argument in the district 

court and the court did not abuse its discretion by failing to 

raise the issue on its own. Moreover, Kimbrough did not affect 

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our appellate presumption for sentences within a properly 

calculated guideline range. See Mondragon-Santiago, 564 F.3d at 

366. We further conclude that the district court did not 

consider an improper factor or otherwise abuse its discretion in 

sentencing Martinez-Hernandez to the high end of his guideline 

range. Martinez-Hernandez does not claim that the district 

court failed to consider the § 3553(a) factors, and as noted by 

the Government, the court was not limited to consideration of 

those factors. See 18 U.S.C. § 3661 (2006). The district 

court’s comments indicate its consideration of the nature and 

circumstances of Martinez-Hernandez’s offense, his history and 

characteristics, and the need for the sentence to promote 

respect for the law, afford adequate deterrence to criminal 

conduct, and protect the public from further crimes. 

We therefore affirm the district court’s 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