                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4640


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JESUS SANCHEZ-MENDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:12-cr-00037-REP-1)


Submitted:   March 28, 2013                 Decided:   April 18, 2013


Before DAVIS, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jesus     Sanchez-Mendez           pled   guilty      without   a    plea

agreement to illegal re-entry by an aggravated felon, 8 U.S.C.

§§ 1326(a),      (b)(2)    (2006).         He    was   sentenced     to   thirty-six

months in prison, to be followed by a thirty-six-month term of

supervised release.        Sanchez-Mendez now appeals, contending that

his sentence is unreasonable.          We affirm.



                                           I

             We review a sentence for reasonableness, applying an

abuse-of-discretion standard.              Gall v. United States, 552 U.S.

38, 51 (2007); United States v. King, 673 F.3d 274, 283 (4th

Cir.), cert. denied, 133 S. Ct. 216 (2012).                        We first examine

the sentence for “significant procedural error.”                     Gall, 552 U.S.

at 51.       If we find the sentence to be procedurally reasonable,

we   will    then    consider   the   substantive          reasonableness    of   the

sentence, taking into account the totality of the circumstances.

United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.

2010).

             “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court, we review for abuse of discretion.                          If we find such

abuse,      we   reverse   unless     we        conclude    that    the   error    was

harmless.”       United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

                                           2
2010).       However,      unpreserved       non-structural        sentencing     errors

are reviewed for plain error.             Id. at 576-77.



                                             II

             Sanchez-Mendez’s total offense level was 13, and his

criminal     history       category    was    IV,      for   a   Guidelines    range     of

24-30       months.           The      district          court      determined         that

Sanchez-Mendez’s criminal history was sufficiently serious and

the likelihood of recidivism sufficiently great to justify an

upward departure pursuant to U.S. Sentencing Guidelines Manual

§ 4A1.3(a)(1) (2011).            The court concluded that criminal history

category     IV     substantially        under-represented            Sanchez-Mendez’s

criminal past for several reasons:                     five prior convictions were

not     assigned      criminal        history       points;      Sanchez-Mendez         had

consistently engaged in a variety of petty offenses since 2003;

he    had   continued       to   commit      crimes      despite      having    received

lenient treatment for his offenses; and he was not prosecuted —

and not assigned a criminal history point — for his initial

illegal entry into this country.                    The court accordingly granted

the Government’s motion for upward departure and departed to

criminal history category VI, resulting in an offense level of

33-41 months.

             In    sentencing       Sanchez-Mendez           within    this    range     to

thirty-six        months    in   prison,         the    court     considered     the     18

                                             3
U.S.C.A. § 3553(a)          (West    2000    &   Supp.     2012)    factors.        Among

other    things,      the    court    stated     that      the    selected       sentence

reflected the defendant’s lack of respect for the law, the need

to deter similar conduct by others, the need to protect the

public from his criminal behavior, and the need to prevent his

again entering this country illegally.

              Because Sanchez-Mendez requested a sentence below the

original   Guidelines        range,    he    adequately      preserved       his    claim

that the term of imprisonment was unreasonable, and our review

is for abuse of discretion.                See Lynn, 592 F.3d at 578.               When,

as here, the district court imposes a departure sentence, this

review requires us to consider “whether the sentencing court

acted reasonably both with respect to its decision to impose

such a sentence and with respect to the extent of the divergence

from     the         sentencing        range.”              United         States      v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).                              The

district court “has flexibility in fashioning a sentence outside

of the Guidelines range,” and need only “‘set forth enough to

satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis’” for its decision.                             United

States   v.    Diosdado-Star,        630    F.3d    359,    364     (4th    Cir.    2011)

(quoting      Rita    v.    United    States,      551   U.S.      338,    356    (2007))

(brackets omitted).



                                            4
              Our      review          of     the    record       convinces         us     that       the

district       court     did       not       abuse       its   discretion           in    sentencing

Sanchez-Mendez         to     thirty-six            months       in       prison.         First,      as

explained        by      the        district             court,       at      least        five        of

Sanchez-Mendez’s             prior          offenses      were       not    counted        when       his

criminal            history              category              was          determined,               and

under-representation of criminal history “is an encouraged basis

for departure.”              United States v. Dixon, 318 F.3d 585, 588-89

(4th    Cir     2003).            Additionally,            there      was     a     likelihood        of

recidivism.           Therefore,             the    decision         to    depart        was   proper.

Further, the district court appropriately applied several of the

§ 3553(a) factors when selecting a sentence only twenty percent

above the highest end of the original Guidelines range.                                               See

King,    673     F.3d       at     284       (concluding         upward       variant          sentence

reasonable       as     it       was     adequately         supported         by     reference        to

§ 3553(a)       factors          that        “the    court       determined         required          the

sentence ultimately imposed”); Diosdado-Star, 630 F.3d at 366-67

(holding       upward        variant           sentence         six        years     longer        than

Guidelines range reasonable because the court expressly relied

on several § 3553(a) factors to support the variance).



                                                    III

              Sanchez-Mendez                contends      that    the      three-year          term   of

supervised release was unreasonable for two reasons.                                       First, he

                                                     5
maintains that the district court contravened the Guidelines,

which state that a district court “ordinarily should not impose

a   term     of   supervised         release    in       a    case   in    which          supervised

release      is    not    required      by     statute         and   the    defendant             is    a

deportable          alien       who      likely          will        be     deported           after

imprisonment.”           USSG § 5D1.1(c).            Second, Sanchez-Mendez claims

that    the       district      court’s      explanation             of    its    reasons          for

imposing          supervised          release        was        inadequate.                  Because

Sanchez-Mendez           did    not    object       to       imposition      of       a    term        of

supervised release or argue in favor of a term different than

the one imposed, our review is for plain error.                                  See Lynn, 592

F.3d at 576-77.

              We identify no such error in this case.                             Notably, the

Guideline         does    not    prohibit       the          imposition     of        a    term        of

supervised release on deportable aliens, and we conclude that

the    district        court    did    not   abuse       its     discretion           in   imposing

supervised release on Sanchez-Mendez.                          While the district court

did not specifically tie the § 3553(a) factors to the term of

supervised        release,      it     is    arguable         that    the     court         was    not

obligated to do so because Sanchez-Mendez did not challenge the

imposition of a term of release at sentencing.                                   In any event,

many    of    the      § 3553(a)       factors      that       the    court       mentioned            in

imposing the term of imprisonment apply with equal force to the

imposition        of     the    supervised       release         term.           As       previously

                                                6
discussed, the court considered the particular facts of Sanchez-

Mendez’s case and found that an added measure of deterrence was

needed to keep him from again illegally entering this country

and to protect the public from his propensity to break the law.

Because the court expressly considered the circumstances of the

case in determining the supervised release term, we hold that

the court’s explanation was adequate, especially on plain error

review.



                               IV

          We accordingly affirm.    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




                               7
