                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4431


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

PEDRO MARTINEZ-HERNANDEZ,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:07-cr-00287-BR-1)


Submitted:    January 27, 2010              Decided:   February 11, 2010


Before MICHAEL, KING, and SHEDD, 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Affirmed by unpublished per curiam opinion.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,
Barbara D. Kocher, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Pedro Martinez-Hernandez appeals his seventy-one month

prison sentence for illegally reentering the United States after

having been convicted of an aggravated felony and deported, in

violation of 8 U.S.C. § 1326(a)(2), (b)(2) (2006).                    On appeal,

Martinez-Hernandez contends that his sentence at the high end of

his    advisory   guideline    range       is    unreasonable,       because    it

resulted from application of the sixteen-level enhancement under

U.S.   Sentencing   Guidelines    Manual        § 2L1.2(b)(1)(A)(i)       (2007),

and because the district court considered an improper factor in

selecting the sentence.       We affirm.

             We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard.                   See Gall v.

United States, 552 U.S. 38, 51 (2007).              The first step in this

review requires us to ensure that the district court committed

no significant procedural error, such as improperly calculating

the guideline range, failing to consider the 18 U.S.C. § 3553(a)

(2006) factors, or failing to adequately explain the sentence.

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                     We

then   consider   the   substantive    reasonableness         of    the   sentence

imposed, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.         On appeal, we presume that a sentence

within   a   properly   calculated     guideline      range    is    reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

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            Martinez-Hernandez, a citizen of Mexico who illegally

entered the United States, has been deported from the United

States three times.       After being deported on September 26, 1998,

he illegally returned and was convicted of possessing narcotic

drugs for sale on September 16, 1999.               After being deported on

December 20, 1999, he illegally returned and was convicted on

July 10, 2000, of sale of narcotic drugs.                  After serving his

prison sentence, he was deported on June 25, 2003, and illegally

returned on November 1, 2003.         On June 4, 2007, he was arrested

for    interfering   with   emergency        communications     in    a   domestic

dispute.    He was subsequently indicted and pled guilty to being

found in the United States after having been convicted of an

aggravated felony on July 10, 2000, and removed on June 25,

2003.

            The probation officer determined Martinez-Hernandez’s

base    offense   level   under   USSG       § 2L1.2(a)   was   eight;     sixteen

levels were added under USSG § 2L1.2(b)(1)(A)(i) because he was

deported after a drug trafficking offense conviction for which

his sentence exceeded thirteen months; and he received a three-

level reduction for acceptance of responsibility.                    With a total

offense level of twenty-one and criminal history category IV,

his guideline range was fifty-seven to seventy-one months.                      He

filed an objection to the sixteen-level enhancement based on

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny,

                                         3
asserting the district court was prohibited from making factual

findings to apply the enhancement.       The district court overruled

the objection and adopted the presentence report.

            Martinez-Hernandez requested a sentence at the low end

or below his guideline range, arguing that there was less need

for the district court to protect the public in fashioning a

sentence because he would be returned to Mexico; he had tried to

change his life when he returned to the United States the last

time by working and taking care of his family; his children and

fiance were relocating to Mexico and he did not wish to return

to the United States; and deterrence would be accomplished by a

sentence below the guideline range.         The Government responded

that based on Martinez-Hernandez’s record, deportation did not

appear to protect the public at all.       The Government also noted

he had been a member of a street gang and requested that the

district court impose a sentence within the guideline range.

            In explaining its sentence, the district court noted

Martinez-Hernandez had been deported and “turned right around

and came back”; and when he came back, he “violated the law by

selling drugs and things of that nature.”         The sentencing judge

further commented that he had sympathy for people who came to

the   United   States   seeking   employment,   but   that   people   like

Martinez-Hernandez gave the people who came here legitimately a

bad name.

                                    4
               On appeal, Martinez-Hernandez contends his sentence is

unreasonable because the effect his behavior has on the public

perception of a group of people, i.e., people coming to this

country   legitimately,       is   not       one    of    the    18    U.S.C.      § 3553(a)

(2006) factors, and the district court should not have based any

part of his sentence on such a ground.                    He further contends that

the    sixteen-level    enhancement          under       USSG    §    2L1.2(b)(1)(A)(i)

makes    his    sentence    unreasonable           as    it     was    “enacted      by   the

Sentencing      Commission     with     little          deliberation         or    empirical

justification”;       resulted     in    a    sentence        that     is    greater      than

necessary to comply with the statutory purposes of punishment;

and his sentence based on the enhancement is not entitled to a

presumption      of   reasonableness         on     appeal.           Martinez-Hernandez

does    not,     however,     contend        that       his     guideline         range   was

improperly calculated.

               While the district court was free to consider policy

decisions      behind   the    guidelines,          including          the    presence     or

absence of empirical data, as part of its consideration of the

§ 3553(a) factors in this case, see Kimbrough v. United States,

552 U.S. 85 (2007); United States v. Mondragon-Santiago, 564

F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009),

Martinez-Hernandez did not make this argument in the district

court and the court did not abuse its discretion by failing to

raise the issue on its own.              Moreover, Kimbrough did not affect

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our     appellate     presumption      for       sentences          within    a    properly

calculated guideline range.            See Mondragon-Santiago, 564 F.3d at

366.      We    further   conclude      that      the     district      court      did   not

consider an improper factor or otherwise abuse its discretion in

sentencing Martinez-Hernandez to the high end of his guideline

range.      Martinez-Hernandez         does       not   claim       that     the   district

court failed to consider the § 3553(a) factors, and as noted by

the Government, the court was not limited to consideration of

those    factors.       See    18    U.S.C.      § 3661    (2006).           The   district

court’s comments indicate its consideration of the nature and

circumstances of Martinez-Hernandez’s offense, his history and

characteristics,        and    the    need       for    the    sentence       to     promote

respect    for    the   law,    afford    adequate        deterrence         to    criminal

conduct, and protect the public from further crimes.

               We therefore 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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