                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4581


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MOISES RIVAS-POSADA, a/k/a Moises Rivers, a/k/a Moises Rivas
Posada, a/k/a Moises Rivera, a/k/a Moises Posada,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:15-cr-00154-LMB-1)


Submitted:   July 28, 2016                 Decided:   August 3, 3016


Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Geremy C. Kamens, Acting Federal Public Defender, Caroline S.
Platt, Appellate Attorney, Brooke Sealy Rupert, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Angela   Mulunesh   Fiorentino-Rios,  Assistant United  States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Moises         Rivas-Posada           pled        guilty,      pursuant           to     a    plea

agreement,           to     unlawful         reentry           after        removal          following

conviction of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a), (b)(2) (2012).                    The district court sentenced Rivas-

Posada     to    36        months’       imprisonment          and     3    years’        supervised

release.         Counsel         has     filed      a   brief     pursuant         to     Anders       v.

California,          386    U.S.      738    (1967),       stating         that    there       are     no

meritorious          grounds       for      appeal       but    questioning          whether          the

sentence        is        reasonable.              Rivas-Posada            has     not        filed     a

supplemental pro se brief, despite receiving notice of his right

to do so.            We affirm in part, vacate in part, and remand for

further proceedings.

      We    review          a    sentence        for     reasonableness,            applying           “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       Sentencing

Guidelines range, gave the parties an opportunity to argue for

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

(2012)     factors,             and    sufficiently             explained          the        selected

sentence.       Id. at 49-51.               If there are no procedural errors, we

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then    consider     the       substantive         reasonableness         of    a   sentence,

evaluating “the totality of the circumstances.”                             Id. at 51.       A

sentence is presumptively reasonable if it is within or below

the Guidelines range, and this “presumption can only be rebutted

by    showing      that   the    sentence          is    unreasonable       when     measured

against the 18 U.S.C. § 3553(a) factors.”                                United States v.

Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

       In this case, the record establishes that Rivas-Posada’s

below-Guidelines          sentence       of        36     months’        imprisonment       is

procedurally and substantively reasonable.                          The district court

correctly calculated Rivas-Posada’s criminal history category,

total offense level, and Guidelines range, provided the parties

the    opportunity        to    argue    for       an    appropriate        sentence,      and

considered      Rivas-Posada’s          allocution.          The    court       provided    an

adequate     and     individualized           explanation          of     its   sentencing,

highlighting       Rivas-Posada’s         risk      of    recidivism.           Contrary    to

counsel’s assertion, the district court considered the age of

Rivas-Posada’s felony convictions, and adequately described why

it     was   not     persuaded        that     this       factor        warranted     further

variance.

       Turning to the supervised release portion of the sentence,

in the case of a deportable alien who will likely be deported

after    imprisonment,          the    Sentencing         Guidelines        provide    that,

unless otherwise required by statute, “[t]he court ordinarily

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should    not      impose    a   term    of     supervised         release.”           U.S.

Sentencing Guidelines Manual § 5D1.1(c) (2014).                      However, if the

district court concludes that a supervised release term would

provide “an added measure of deterrence and protection based on

the facts and circumstances of a particular case,” then “[t]he

court    should     . . .     consider    imposing       a    term       of    supervised

release.”       Id. § 5D1.1 cmt. n.5.            Although the district court

should make such a finding on the record, “where a sentencing

court (1) is aware of Guidelines section 5D1.1(c); (2) considers

a defendant’s specific circumstances and the § 3553(a) factors;

and (3) determines that additional deterrence is needed, nothing

more is required.”           United States v. Aplicano-Oyuela, 792 F.3d

416, 424 (4th Cir. 2015) (alterations and internal quotation

marks omitted).

       In the instant case, there is no evidence that the district

court was aware of the applicability of USSG § 5D1.1(c).                               The

presentence investigation report failed to mention § 5D1.1, and

neither the district court nor the parties referenced it during

the sentencing hearing or in sentencing memoranda.                            We conclude

this     failure     to     consider     USSG    § 5D1.1(c)         is    procedurally

unreasonable.         Accordingly,        we    vacate       the    portion       of   the




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sentencing imposing supervised release and remand for further

proceedings. ∗

     Pursuant to Anders, we have reviewed the remainder of the

record in this case and have found no other meritorious grounds

for appeal.       Accordingly, we affirm Rivas-Posada’s conviction

and 36-month term of imprisonment.

     This court requires that counsel inform Rivas-Posada, in

writing,   of    the   right   to   petition    the   Supreme   Court   of   the

United States for further review.          If Rivas-Posada requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                Counsel’s motion must

state that a copy thereof was served on Rivas-Posada.

     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 IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




     ∗  We express no opinion              regarding     the    propriety     of
supervised release in this case.



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