                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4742



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BRYAN LEE GIBSON,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (1:05-cr-00069-JAB)


Submitted:   January 19, 2007           Decided:     February 15, 2007


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Bryan Lee Gibson pled guilty to possession of child

pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West

Supp.    2006),   and    received       a   sentence    of    forty-six    months

imprisonment.     Gibson appeals the sentence, contending that this

circuit’s     decision    to    review      sentences    within     a   correctly

calculated guideline range as presumptively reasonable renders the

guidelines mandatory and is consequently unconstitutional. He also

maintains that his sentence is unreasonable.                 We affirm.*

            Following United States v. Booker, 543 U.S. 220 (2005),

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) (internal quotation marks and citation omitted).                    “[A]

sentence    within      the    proper       advisory    Guidelines      range    is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006). “[A] defendant can only rebut the presumption

by demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”             United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and

citation omitted), petition for cert. filed, __ U.S.L.W. __ (U.S.

July 21, 2006) (No. 06-5439). While a district court must consider


     *
      We decline to hold this case in abeyance, as Gibson requests,
pending a decision in United States v. Rita, 177 F. App’x 357 (4th
Cir.) (unpublished), cert. granted, 127 S. Ct. 551 (2006).

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the various § 3553(a) factors and explain its sentence, it need not

explicitly reference § 3553 or discuss every factor on the record.

Johnson, 445 F.3d at 345.       This is particularly true when the

sentence is within the applicable guideline range.          Id.    In fact,

one   reason   that   a   sentence     within   an    advisory    range    is

presumptively reasonable is that the most salient § 3553(a) factors

are already incorporated into guideline determinations.             Id. at

342-43.

          A    sentence   falling    outside    the   guidelines    is    not

presumptively unreasonable.    However, if the sentence was based on

an error in interpreting the guidelines or if the court provided an

inadequate statement of reasons or relied on improper factors, the

sentence will be unreasonable.        United States v. Green, 436 F.3d

449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).                  A

variance justified by reasons tied to § 3553(a) generally will be

reasonable. When a variance from the guidelines is substantial, we

must scrutinize the reasoning more intensely.            The further the

sentencing court diverges from the guideline range, the more

compelling the reasons for the divergence must be.          Moreland, 437

F.3d at 434.

          In light of our precedents, we find no merit in Gibson’s

claim that our standard of review renders the guidelines per se

mandatory. We further conclude that Gibson has failed to rebut the

presumption that his sentence is reasonable.


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           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




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