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United States v. Yanez-Hernandez, 4th Cir. (2011)
United States v. Yanez-Hernandez, 4th Cir. (2011)
No. 09-4709
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (7:08-cr-00106-D-1)
Submitted:
Decided:
PER CURIAM:
Ezau Yanez-Hernandez appeals the 156-month sentence he
received
after
distribute
pleading
cocaine,
guilty
in
to
possession
violation
of
21
with
U.S.C.
intent
to
841(a)(1)
appeal,
Yanez-Hernandez
argues
that
the
district
court
He
also contends that the sentence was greater than necessary under
18 U.S.C. 3553(a) (2006).
Because
Amendment
claim
We affirm.
Yanez-Hernandez
in
the
district
did
not
court,
raise
we
his
review
Fifth
for
plain
error.
2010).
that
an
error
obvious),
Even
and
when
exercise
(1)
(3)
was
affects
defendant
[our]
made,
is
substantial
meets
discretion
(2)
to
these
plain
the
clear
or
Id.
at
577.
criteria,
we
may
rights.
three
correct
(i.e.,
error
only
if
it
judicial
proceedings.
Id.
(internal
quotation
marks
district
court
omitted).
As
violated
his
support
Fifth
for
his
claim
Amendment
that
rights
2
at
the
sentencing,
Yanez-
Hernandez
(1999).
relies
on
Mitchell
v.
United
States,
526
U.S.
314
on Mitchell is misplaced.
Supreme Court nor this court has addressed the Fifth Amendment
issue
Yanez-Hernandez
reached
different
raises,
and
conclusions.
other
circuit
Thus,
in
courts
the
absence
have
of
States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) (An error is
clear or obvious when the settled law of the Supreme Court or
this circuit establishes that an error has occurred.).
Yanez-Hernandez
excessive.
district
Appellate
courts
for
discretion standard.
also
argues
courts
that
review
reasonableness,
his
sentence
sentences
applying
an
was
imposed
by
abuse
of
(2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
consider
the
3553(a)
that
sentence
factors,
explain
within
and
the
properly
its
We
calculated
F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding application of rebuttable
3
presumption
of
Yanez-Hernandez
correctness
has
failed
of
to
within-Guidelines
show
sentence).
unreasonableness
in
the
as
the
quantity
of
drugs
and
scope
of
the
enterprise,
dispense
with
oral
argument
because
the
facts
and
legal
AFFIRMED