UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSELIO GARCIA-AGUILERA, a/k/a Paulino Vargas-Valencia,
a/k/a Pedro Lopez-Lopez,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:10-cr-00240-FL-1)
Submitted: July 28, 2011 Decided: August 1, 2011
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roselio Garcia-Aguilera pled guilty to illegal reentry
by a convicted felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2006). He was sentenced to 96 months’ imprisonment. On
appeal, Garcia-Aguilera argues that his sentence is not
reasonable. We affirm.
We review Garcia-Aguilera’s sentence 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 a sentence. Id. at 51. Garcia-Aguilera,
however, does not contest the procedural reasonableness of his
sentence.
In determining whether a sentence is substantively
reasonable, this court “tak[es] into account the ‘totality of
the circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court
accords a sentence within a properly-calculated Guidelines range
an appellate presumption of reasonableness. United States v.
Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Such a presumption
is rebutted only by showing “that the sentence is unreasonable
when measured against the [18 U.S.C.A.] § 3553(a) [(West 2000 &
Supp. 2011)] factors.” United States v. Montes–Pineda, 445 F.3d
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375, 379 (4th Cir. 2006) (internal quotation marks omitted).
Here, the district court calculated an unchallenged
advisory Guidelines range of seventy-seven to ninety-six months’
imprisonment. Defense counsel argued for a sentence at the
bottom of the Guidelines range in light of Garcia-Aguilera’s
impoverished childhood and long history of substance abuse.
The district court ultimately accepted the Government’s
recommendation and sentenced Garcia-Aguilera at the top of the
Guidelines range, noting his “egregious criminal history” and
undeterred conduct over the years. To the extent Garcia-
Aguilera argues that the district court should have adopted his
policy argument relating to the applicable Guideline in this
case directing a sixteen-level enhancement, the presumption of
reasonableness is not overcome simply because the district court
failed to reject the policy of a Guideline. See United
States v. Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.)
(explaining that, although “district courts certainly may
disagree with the Guidelines for policy reasons and may adjust a
sentence accordingly[,] . . . if they do not, we will not
second-guess their decisions under a more lenient standard
simply because the particular Guideline is not empirically-
based”), cert. denied, 130 S. Ct. 192 (2009). We conclude the
district court did not abuse its discretion in sentencing
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Garcia-Aguilera and that his sentence is substantively
reasonable.
Accordingly, we affirm the district court’s judgment.
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
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