UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4380

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FERNANDO LUIS TOLENTINO-TOLENTINO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (5:13-cr-00245-BR-1)

Submitted: March 20, 2015 Decided: April 2, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Robert E. Waters, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer 

P. May-Parker, Seth M. Wood, Assistant United States Attorneys, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Fernando Luis Tolentino-Tolentino (“Tolentino-Tolentino”) 

pleaded guilty to one count of illegal reentry by an aggravated 

felon, in violation of 8 U.S.C. § 1326(a), (b)(2) (2012). The 

district court sentenced Tolentino-Tolentino to 46 months’ 

imprisonment, the low end of the Sentencing Guidelines range. 

Tolentino argues that the sentence is both procedurally and 

substantively unreasonable. He contends that the 16-level 

increase to the offense level, as called for by U.S. Sentencing 

Guidelines Manual § 2L1.2(b)(1)(A)(vii) (2013), unjustly 

increased his Guidelines range, and that the resulting sentence 

is both procedurally and substantively unreasonable. Finding no 

error, we affirm.

We review a sentence for reasonableness “under a 

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

States, 552 U.S. 38, 41 (2007). This review entails appellate 

consideration of both the procedural and substantive 

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

procedural reasonableness, we consider whether the district 

court properly calculated the defendant’s advisory Guidelines 

range, gave the parties an opportunity to argue for an 

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

factors, selected a sentence based on clearly erroneous facts, 

and sufficiently explained the selected sentence. Id. at 49-51. 
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If the sentence is free of “significant procedural error,” 

we review it for substantive reasonableness, “tak[ing] into 

account the totality of the circumstances.” Id. at 51. Any 

sentence within or below a properly calculated Guidelines range 

is presumptively substantively reasonable. United States v. 

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 

421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th 

Cir. 2012). Such a presumption can only be rebutted by a 

showing that the sentence is unreasonable when measured against 

the 18 U.S.C. § 3553(a) sentencing factors. Louthian, 756 F.3d 

at 306. Any sentence imposed by the district court must be 

“sufficient, but not greater than necessary,” to satisfy the 

purposes of sentencing. 18 U.S.C. § 3553(a). 

Here, the district court properly calculated the Guidelines 

range, allowed the parties to argue for the appropriate 

sentence, considered the § 3553(a) sentencing factors, did not 

base the sentence on erroneous facts, and sufficiently explained 

the sentence. We conclude that the sentence was procedurally 

reasonable. 

We observe that the district court considered TolentinoTolentino’s policy arguments regarding the application of USSG 

§ 2L1.2(b)(1)(A)(vii). It is well-established that a district 

court may consider policy-based objections to the Guidelines. 

See Spears v. United States, 555 U.S. 261, 265-66 (2009) (per 
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curiam) (“[D]istrict courts are entitled to reject and vary 

categorically from the crack-cocaine Guidelines based on a 

policy disagreement with those Guidelines.”); Kimbrough v. 

United States, 552 U.S. 85, 91, 109-10 (2007). However, 

“[a]lthough a sentencing court may be entitled to consider 

policy decisions underlying the Guidelines, . . . it is under no 

obligation to do so.” United States v. Rivera-Santana, 668 F.3d 

95, 101 (4th Cir. 2012) (citation omitted). Here, the court 

acknowledged Tolentino-Tolentino’s policy-based arguments, which

were asserted in support of Tolentino-Tolentino’s request for a 

below-Guidelines sentence, and gave its reasons for rejecting 

those arguments. The court’s imposition of a within-Guidelines 

sentence is presumptively substantively reasonable, and we find 

no reason to conclude that the sentence is unreasonable when 

measured against the § 3553(a) sentencing factors.

Accordingly, we affirm the sentence. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED