UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5083

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GIOVANNI HERNANDEZ-SANCHEZ, a/k/a Joninim Fernandez, a/k/a

Julio Iglesias, a/k/a Julio Iglesian, a/k/a Jovani Hernandez,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief

District Judge. (3:07-cr-00376-JFA-1)

Submitted: July 31, 2008 Decided: September 2, 2008

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Allen B. Burnside, Assistant Federal Public Defender, Aileen P.

Clare, Research & Writing Specialist, Columbia, South Carolina, for

Appellant. Kevin F. McDonald, Acting United States Attorney, Anne

Hunter Young, Assistant United States Attorney, Columbia, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

A “crime of violence” includes “any offense under federal,

state, or local law that has as an element the use, attempted use,

or threatened use of physical force against the person of another.”

USSG § 2L1.2 cmt. n.1(B)(iii). Hernandez-Sanchez does not argue

that felony resisting arrest under South Carolina law does not

qualify as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). 

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PER CURIAM:

Giovanni Hernandez-Sanchez appeals the seventy-month

sentence imposed after he pleaded guilty to illegal reentry of a

deported alien felon, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006). Finding no error, we affirm.

Hernandez-Sanchez argues that the district court imposed

an unreasonable sentence by applying the sixteen-level enhancement

under U.S. Sentencing Guidelines Manual (“USSG”)

§ 2L1.2(b)(1)(A)(ii) (2006). Specifically, although

Hernandez-Sanchez concedes that he pled guilty to resisting arrest

under South Carolina law, he asserts that he was convicted of a

misdemeanor under S.C. Code Ann. § 16-9-320(A) (2003), rather than

a felony under § 16-9-320(B). This distinction is critical, as a

felony resisting arrest conviction qualifies as a “crime of

violence”* that supports the sixteen-level enhancement of

Hernandez-Sanchez’s offense level, whereas a misdemeanor resisting

arrest conviction does not.

We conclude that the evidence supports the district

court’s finding that the Government established Hernandez-Sanchez’s

conviction for felony resisting arrest. Although Hernandez-Sanchez
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points out that the criminal docket report code, an administrative

code reported on the state sentencing sheet, is not dispositive,

see State v. Bennett, 650 S.E.2d 490, 493-95 (S.C. Ct. App. 2007),

the code was only one piece of the corroborating evidence. The

probation officer’s recommendation was also supported by the fact

that the plea and sentencing sheet contained notations

corresponding to the penalties for felony resisting arrest. The

offense description on the plea and sentencing sheet was also

specific to the language of the felony subsection. Finally, the

“lesser included offense” box was unchecked. In short, the

determination that Hernandez-Sanchez pleaded guilty to felony

resisting arrest was supported by a preponderance of the evidence.

See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008)

(“Sentencing judges may find facts relevant to determining a

Guidelines range by a preponderance of the evidence . . .”). 

Hernandez-Sanchez also argues, as he did below, that

application of the sixteen-level enhancement resulted in a sentence

that is greater than necessary to achieve the statutory purposes of

sentencing. He claims that the facts underlying his conviction are

not typical of a crime of violence, and that the district court

should have considered that Hernandez-Sanchez will likely also

suffer the non-criminal sanction of deportation. 

This court will affirm a sentence so long as it is within

the statutorily prescribed range and is reasonable. United
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States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).

Reasonableness review focuses on whether the district court abused

its discretion. United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007). When sentencing a defendant, the district court must

(1) properly calculate the guidelines range; (2) determine whether

a sentence within that range serves the 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2008) factors in light of the arguments presented by

the parties; (3) implement mandatory statutory limitations; and

(4) explain its reasons for selecting a sentence. See Gall v.

United States, 128 S. Ct. 586, 596-97 (2007). “Even if we would

have reached a different sentencing result on our own, this fact

alone is ‘insufficient to justify reversal of the district court.’”

Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at 597). 

Here, the district court properly calculated the

guidelines range, granted a variance in Hernandez-Sanchez’s favor

based on an amendment to USSG § 4A1.2(a)(2) not yet in effect at

the time of the sentencing hearing, and determined that a sentence

at the bottom of that recalculated range would best serve the

§ 3553(a) factors. The district court considered the circumstances

of the 2006 resisting arrest conviction and was aware of the issue

of deportation. Based on the record as a whole, the district court

properly considered all the factors and arguments in arriving at

its sentence. Thus, there was simply no abuse of discretion. 
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We therefore affirm the sentence. 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