                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5169


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OLVIN ABEL ELVIR-SOTO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:11-cr-00201-REP-1)


Submitted:   June 29, 2012                 Decided:   July 10, 2012


Before WYNN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Olvin       Abel       Elvir-Soto     pled     guilty     to     illegally

reentering      the    United      States      after    being     removed    for     a

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

§ 1326 (2006).         The district court sentenced Elvir-Soto to an

upward   variance      sentence     of    forty-eight    months’    imprisonment.

Elvir-Soto appeals, arguing that the district court imposed an

unreasonable sentence.           We affirm.

           We review a sentence imposed by a district court for

reasonableness,        applying      “a     deferential       abuse-of-discretion

standard.”      United States v. Rivera-Santana, 668 F.3d 95, 100

(4th Cir. 2012) (internal quotation marks omitted).                      If we find

the sentence procedurally reasonable, * we review the substantive

reasonableness        of   the    sentence      under   the     totality    of     the

circumstances.        See United States v. Strieper, 666 F.3d 288,

292, 295 (4th Cir. 2012).                A sentencing court must “impose a

sentence sufficient, but not greater than necessary, to comply

with the purposes [of sentencing].”              18 U.S.C. § 3553(a) (2006).

           In     determining        whether      a     variance     sentence       is

reasonable, we must consider whether the degree of variance is

     *
       Elvir-Soto does not challenge on appeal the procedural
reasonableness of his sentence. See Mayfield v. Nat’l Ass’n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 376-77 (4th Cir.
2012) (noting that party’s failure to raise issue in opening
brief results in abandonment of issue).



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supported by the court’s justification, with a larger variance

requiring more substantial justification.                       See United States v.

Diosdado-Star, 630 F.3d 359, 366 (4th Cir.), cert. denied, 131

S. Ct. 2946 (2011).             However, we must affirm if “the § 3553(a)

factors, on the whole, justified the sentence” imposed.                               Id. at

367 (internal quotation marks omitted).                     “Even if we would have

reached   a    different        sentencing       result    on    our    own,       this    fact

alone    is    insufficient        to   justify      reversal          of    the     district

court.”       United States v. Pauley, 511 F.3d 468, 474 (4th Cir.

2007) (internal quotation marks omitted).

              We    conclude     that   the      district       court’s      sentence       was

substantively           reasonable.         The     district       court        considered

arguments      from      the    parties     addressing          both    mitigating          and

aggravating factors and applied these arguments in fashioning a

sentence.          The court specifically noted Elvir-Soto’s repeated

reentries, calculated purpose to violate the law, and actual and

apparent involvement in illegal activity, as well as his failure

to   respond       to    the   leniency     previously       accorded         him     by   the

criminal justice system and the limiting effect of this leniency

on   Elvir-Soto’s         Guidelines      range.          Accordingly,          the       court

concluded      that       a    within-Guidelines          sentence          would    not    be

sufficient to deter Elvir-Soto or others from future illegal

activity, to promote respect for the law, or to protect the

public    from      further      criminal        activity.         While       the    upward

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variance was not insubstantial, we conclude the sentence imposed

was not disproportionate with the § 3553(a) factors as a whole

and did not constitute an abuse of discretion.

            Accordingly, we affirm the judgment of 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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