UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4526

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE ALVARO HENRIQUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (1:06-cr-00516-JCC)

Submitted: June 9, 2008 Decided: July 14, 2008

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt,

Assistant Federal Public Defender, Alexandria, Virginia, for

Appellant. Chuck Rosenberg, United States Attorney, Harold W.

Chun, Special Assistant United States Attorney, Alexandria,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jose Alvaro Henriquez pled guilty to unauthorized reentry

of a removed alien whose removal was subsequent to a conviction for

commission of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b)(2) (2000). The district court properly

calculated Henriquez’s advisory Sentencing Guidelines range as 70-

87 months of imprisonment, and sentenced him to 70 months’

imprisonment. Henriquez timely appeals, alleging that the district

court’s sentence is procedurally and substantively unreasonable.

For the reasons that follow, we affirm.

After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence to determine whether it is unreasonable, applying

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

States, 128 S. Ct. 586, 591 (2007). A district court must engage

in a multi-step process at sentencing. First, the sentencing court

must calculate the appropriate Sentencing Guidelines range by

making any necessary factual findings. United States v. Moreland,

437 F.3d 424, 432 (4th Cir. 2006). Then the court should afford

the parties “an opportunity to argue for whatever sentence they

deem appropriate.” Gall, 128 S. Ct. at 596-97. Next, it should

consider the resulting advisory sentencing range in conjunction

with the factors set out in 18 U.S.C. § 3553(a) (2000), and

determine whether the § 3553(a) factors support the sentence

requested by either party. Id. Considering the factors in
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§ 3553(a) does not require the sentencing court to “robotically

tick through” every subsection of § 3553(a). United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert. denied, 127

S. Ct. 3044 (2007). 

To determine whether a sentencing court abused its

discretion, we undertake a two-part analysis. United States v.

Pauley, 511 F.3d 468 (4th Cir. 2007). First, we examine the

sentence for “significant procedural errors,” and second, we

evaluate the substance of the sentence. Id. at 473. Significant

procedural errors include “‘failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.’” Id. (quoting Gall, 128 S. Ct. at

597). “Substantive reasonableness review entails taking into

account the ‘totality of the circumstances, including the extent of

any variance from the Guidelines range.’” Id. (quoting Gall, 128

S. Ct. at 597). While an appellate court may presume a sentence

within the Guidelines range to be reasonable, it may not presume a

sentence outside the range to be unreasonable. Id.

Here, the district court followed the necessary steps in

sentencing Henriquez, and we find no abuse of discretion in its

decision to sentence Henriquez at the bottom of the Guidelines

range. Accordingly, we affirm the district court’s judgment. We
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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