                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5184


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WALTER ENRIQUE MUNOZ-BARAHONA, a/k/a Oscar Torres-Hernandez,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:09-cr-00017-RGD-FBS-1)


Submitted:   July 14, 2010                      Decided:   July 28, 2010


Before TRAXLER,   Chief   Judge,   and   MOTZ    and   GREGORY,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Richard J. Colgan, Assistant Federal Public Defender, Norfolk,
Virginia, for Appellant. Sherrie S. Capotosto, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
       Walter   Enrique     Munoz-Barahona,         a    Mexican      citizen    with   a

history of entering the United States illegally, pled guilty to

again entering the United States illegally on January 7, 2008.

The district court sentenced him to 18 months in prison.                         Munoz-

Barahona     appeals,       challenging       his       sentence      and   requesting

expedited consideration of his appeal.                   We grant the motion for

expedited consideration and affirm.



                                        I.

       Munoz-Barahona illegally entered the United States on April

28, 2005; August 28, 2005; September 18, 2006; October 22, 2006;

February 26, 2007; March 5, 2007; April 6, 2007; June 1, 2007;

and January 7, 2008.          On December 7, 2008, the police arrested

him for driving under the influence and engaging in a hit and

run.    On February 4, 2009, a grand jury charged Munoz-Barahona

with   entering       the   United   States     without        permission       after   a

previous deportation, in violation of 8 U.S.C. § 1326(a) (2006).

He pled guilty.        The statutory maximum for this crime is 2 years

in prison.      Id.

       The probation officer found that Munoz-Barahona had a total

offense level of 6 and a criminal history category of IV, which

corresponded to an advisory United States Sentencing Guidelines

(“U.S.S.G.”     or     “Guidelines”)    sentence          of   6-12    months.      The

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probation officer did not note any factors warranting departure,

and so recommended a sentence within this range.                 Munoz-Barahona

did not object to the probation officer’s recommendation, and

requested a sentence of time served.               The Government expressed

its belief that the Guidelines sentence would be reasonable.

     The district court opened the sentencing hearing with the

following statement:

          So let me be very frank with you, Mr. Colgan
     [defense counsel], so you can address this argument.
          It appears that Mr. Munoz-Barahona has illegally
     entered this country nine times.    He’s reentered this
     country sometimes mere days after being arrested and
     deported. He’s never been subject to a lengthy period
     of incarceration, but he has certainly flouted our
     immigration laws.
     . . . .
          Accordingly, I am contemplating increasing by two
     levels the defendant’s criminal history category,
     because I don’t think it sufficiently reflects his
     lack of caring of our immigration laws. . . .
     . . . .
          I just want you to know that now.     I don’t have
     to give notice, like we did when the sentencing
     guidelines were mandatory, but I do want you to be
     aware that that’s what I’m thinking so you can address
     those issues, if you can.

Defense counsel did not object to the lack of prior notice of an

increased sentence and instead proceeded to address the district

court’s concerns.

     After      hearing   defense   counsel’s      arguments,     the   district

court   again    expressed   its    desire    to   fashion   a   sentence    that

would   deter    Munoz-Barahona     from     future   criminal     conduct   and

protect   the     public.     The     court    increased     Munoz-Barahona’s

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criminal history category from category IV to category VI, which

corresponded to a Guidelines sentence of 12-18 months, and then

sentenced him to 18 months’ imprisonment.

     On    appeal,    Munoz-Barahona        challenges       his    sentence    as

procedurally and substantively unreasonable.



                                   II.

     Munoz-Barahona offers two arguments as to why the district

court procedurally erred in imposing his sentence.                     First, he

contends that “the district court imposed a criminal history

departure without giving the requisite notice of its intent to

depart.”    Br. of Appellant at 6.          Second, he maintains that the

district court “compounded the error by jumping directly from

criminal history category IV to category VI without considering

any intermediate levels of punishment.”                Id.    We consider each

argument in turn.

                                   A.

     Federal   Rule    of   Criminal       Procedure    32(h)      provides    that

“[b]efore the court may depart from the applicable sentencing

guidelines range on a ground not identified for departure either

in the presentence report or in a party’s prehearing submission,

the court must give the parties reasonable notice that it is

contemplating such a departure.”              See also U.S.S.G. § 6A1.4.

Munoz-Barahona and the Government disagree as to whether the

                                       4
district court departed from the Guidelines range or imposed a

variance.          If the district court did the latter, it had no

obligation to notify the parties of its intention to do so.                                       See

Irizarry v. United States, 128 S. Ct. 2198, 2202-04 (2008).

     Assuming for the sake of argument that the district court

erred by departing upward without giving notice, Munoz-Barahona

nevertheless cannot prevail on this argument because he did not

object to the lack of notice at sentencing, and he has not

demonstrated         the       prejudice    necessary            for   a    showing       of    plain

error.     See United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010)    (applying         plain-error         review       to    “unpreserved           claims    of

procedural         sentencing          error”    and        noting         that    plain        error

requires       a    showing       that     “an       error       (1)   was        made,    (2)     is

plain . . . ,            and     (3)    affects       substantial            rights”).            The

district court informed defense counsel of its inclination to

depart    at       the   start     of    the    sentencing         proceedings,           and    gave

defense    counsel         ample       opportunity         to    address     the    issue.         At

sentencing,         Munoz-Barahona         did       not     complain       of     any    lack     of

notice, but rather simply argued the merits.                                On appeal, Munoz-

Barahona does not address the plain-error standard, and offers

no explanation as to how the district court’s asserted notice

error prejudiced him.




                                                 5
                                         B.

       Munoz-Barahona’s       argument       regarding      incremental    departure

also has no merit.        He cites United States v. Dalton, 477 F.3d

195 (4th Cir. 2007), for the proposition that a district court

may depart to “successively higher [criminal history] categories

only upon finding that the prior category does not provide a

sentence     that   adequately      reflects         the     seriousness     of     the

defendant’s criminal conduct.”                Id. at 199 (internal quotation

marks omitted).         However, this requirement applies only where

the district court departs upward from criminal history category

VI.     See id.; U.S.S.G. § 4A1.3(a)(4)(B).                   In this case, the

district court departed upward from category IV to category VI.

While the court did not explain in detail why category VI better

reflected Munoz-Barahona’s criminal history, it adequately drew

from   the   relevant    18   U.S.C.     §    3553(a)      sentencing     factors    to

explain the sentence it imposed.



                                       III.

       Munoz-Barahona’s       argument       that   his    18-month   sentence      was

substantively unreasonable also fails.                     The increased sentence

imposed by the district court -- from the suggested Guidelines

maximum of 12 months to 18 months –- is significant.                        However,

given Munoz-Barahona’s extensive history of entering the country

illegally, and his drug-and-alcohol-related infractions while in

                                         6
the country, we cannot conclude that the sentence imposed was

substantively unreasonable.



                              IV.

     For the foregoing reasons, the judgment of the district

court is

                                                    AFFIRMED.




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