UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4174

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

OCTAVIO CRUZ BELTRAN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:06-cr-00198)

Submitted: September 11, 2007 Decided: September 13, 2007 

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Angela Parrott, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,

Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,

United States Attorney, Charlotte, North Carolina; Amy E. Ray,

Assistant United States Attorney, Asheville, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Octavio Cruz Beltran pled guilty to possession of a

firearm by an illegal alien. At sentencing, the district court

overruled Beltran’s objections to the presentence report and

sentenced him to forty-eight months in prison, a sentence within

the Guidelines range. On appeal, Beltran contends that the

sentence is unconstitutional because he was sentenced under a de

facto mandatory Guidelines system. Accordingly, he asserts that

his sentence, which was based on the judge’s factual findings

rather than his admissions or jury findings, violated his Fifth and

Sixth Amendment rights. We affirm.

Because Beltran did not raise this issue in the district

court, our review is for plain error. United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005). We have concluded that sentencing

decisions made by the district court based upon the preponderance

of the evidence comport with the Sixth Amendment. See United

States v. Morris, 429 F.3d 65, 69 (4th Cir. 2005), cert. denied,

127 S. Ct. 121 (2006). We review a sentence “to determine whether

the sentence is within the statutorily prescribed range and is

reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006). “[A] sentence within

the proper advisory Guidelines range is presumptively reasonable.”

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).

However, while a sentence outside the Guidelines range is not
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presumptively unreasonable, United States v. Green, 436 F.3d 449,

457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006), the further

the sentencing court diverges from the Guidelines, the more

compelling the reasons for the divergence must be. See Moreland,

437 F.3d at 434.

In light of our precedents, we find no merit to Beltran’s

claims that he was sentenced under a mandatory system. See United

States v. Rita, 127 S. Ct. 2456, 2462 (2007) (upholding presumption

of reasonableness). In addition, our review of the record shows

that the district court properly applied our precedents and that

the sentence is reasonable.

We therefore affirm the sentence imposed by the district

court. 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