                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4556


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARIO MENDOZA-MENDOZA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:08-cr-00032-BR-1)


Submitted:   January 28, 2011             Decided:   February 18, 2011


Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker,   Sebastian   Kielmanovich,   Assistant   United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In    July   2008,    Dario   Mendoza-Mendoza          pled   guilty    to

illegally reentering the United States after being removed, in

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

was sentenced to forty-six months’ imprisonment.                          On appeal,

this court vacated his sentence and remanded the case to the

district court for resentencing.              See United States v. Mendoza-

Mendoza, 597 F.3d 212 (4th Cir. 2010).

            At resentencing, the district court restated Mendoza-

Mendoza’s Guidelines calculations:                 his total offense level of

twenty-one,       combined    with    a   criminal       history    category    III,

yielded an advisory sentencing range of forty-six to fifty-seven

months’ imprisonment.            Although Mendoza-Mendoza’s base offense

level was eight, it was increased sixteen levels because of his

prior North Carolina convictions for taking indecent liberties

with a child, which qualified as a crime of violence.                       See U.S.

Sentencing       Guidelines     Manual    (“USSG”)       §   2L1.2(a),     (b)(1)(A)

(2007).       After      analyzing     the    18    U.S.C.     § 3553(a)       (2006)

sentencing factors and considering Mendoza-Mendoza’s arguments

for   a   below-Guidelines        sentence,        the   district     court     again

sentenced     Mendoza-Mendoza        to   forty-six       months’    imprisonment.

This appeal timely followed.

            On        appeal,        Mendoza-Mendoza           challenges          the

reasonableness of his sentence.               With regard to the procedural

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reasonableness         component,       Mendoza-Mendoza           argues         the    district

court     failed       to    properly       consider        the       unique       mitigating

circumstances involved in this case in conducting its analysis

of the § 3553(a) sentencing factors.                         As to the substantive

reasonableness          issue,       Mendoza-Mendoza              first          argues     USSG

§ 2L1.2(b)(1)(A) is not entitled to deference because it was

enacted    without        deliberation      or      empirical         justification,            and

results in a sentence greater than necessary.                               Mendoza-Mendoza

next    contends     the     forty-six-month          sentence            over-punishes         his

offense conduct.            For the reasons that follow, we reject these

contentions and affirm.

            This       court      reviews      a    sentence      for       reasonableness,

applying    an     abuse     of    discretion        standard.              Gall    v.    United

States,    552     U.S.     38,    51   (2007);       see    also         United       States    v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                        This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.               Gall, 552 U.S. at 51.

            In determining procedural reasonableness, we consider

whether the district court properly calculated the defendant’s

advisory    Guidelines         range,    considered         the       §    3553(a)      factors,

analyzed     any       arguments         presented          by     the       parties,           and

sufficiently explained the selected sentence.                              Id.     “Regardless

of   whether     the      district      court      imposes       an       above,    below,       or

within-Guidelines           sentence,     it       must   place       on     the    record       an

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individualized assessment based on the particular facts of the

case before it.”            United States v. Carter, 564 F.3d 325, 330

(4th   Cir.    2009)      (internal   quotation    marks   omitted).        If   the

court finds “no significant procedural error,” it next assesses

the substantive reasonableness of the sentence, taking “‘into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.’”                    United States v.

Morace, 594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S.

at 51), cert. denied, 131 S. Ct. 307 (2010).

              In    his    sole   argument    pertaining   to    the    procedural

reasonableness        of    his    sentence, 1   Mendoza-Mendoza       argues     the

district court erred in its analysis of the § 3553(a) sentencing

factors.       Specifically,        Mendoza-Mendoza     asserts    the    district

court should have afforded more mitigatory weight to the fact

that he has maintained a long-term relationship with the victim

of his prior criminal conduct, Heather Rowe.

              The    record       establishes    that   the      district       court

considered the relationship between Mendoza-Mendoza and Rowe in

rendering its sentencing decision, but ultimately determined it

was an insufficient basis for sentencing Mendoza-Mendoza below

his properly calculated Guidelines range.               At its core, Mendoza-


       1
       Mendoza-Mendoza does not contest the calculation of his
advisory Guidelines range.



                                          4
Mendoza’s argument asks this court to substitute its judgment

for   that    of    the    district      court.          This    we   will     not    do.

Accordingly, we hold Mendoza-Mendoza’s sentence is procedurally

reasonable.

             We next consider the substantive reasonableness of the

imposed    sentence.         In     conducting        substantive     reasonableness

review, this court must “take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines    range.        If    the   sentence       is   within    the    Guidelines

range, the appellate court may, but is not required to, apply a

presumption of reasonableness.”                 Gall, 552 U.S. at 51; see also

United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009).

             Mendoza-Mendoza first contends this court should not

afford a presumption of reasonableness to the within-Guidelines

sentence     he    received,      because       the    sixteen-level        enhancement

authorized by USSG § 2L1.2(b)(1)(A) is an arbitrary guideline,

enacted    without      deliberation     or     empirical       justification,        that

should not be afforded deference.                     This argument amounts to a

policy attack on the applicable enhancement provision, and we

conclude     it    is     without    merit. 2          Accord    United      States     v.


      2
       This court has previously rejected this very argument in
several unpublished, non-binding decisions.   See United States
v. Ibarra-Zelaya, 278 F. App’x 290, 290-91 (4th Cir. 2008)
(holding presumption of reasonableness not overcome simply
because district court failed to reject policy of guideline);
(Continued)
                                            5
Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.) (explaining

that, although “district courts certainly may disagree with the

Guidelines     for        policy    reasons       and   may    adjust     a     sentence

accordingly[,] . . . if they do not, we will not second-guess

their decisions under a more lenient standard simply because the

particular Guideline is not empirically-based”), cert. denied,

130 S. Ct. 192 (2009).

             Finally,       Mendoza-Mendoza         argues     the    forty-six-month

sentence over-punishes his conduct — his third illegal entry

into the United States — and thus is substantively unreasonable.

Mendoza-Mendoza’s argument asks this court to overlook the fact

that his sentencing range was impacted, primarily, by his status

of having been removed following a conviction for a crime of

violence, and instead to view his offense conduct in isolation.

We   decline       this    request.         Further,    we     hold    that     Mendoza-

Mendoza’s      arguments       do     not        overcome     the     presumption      of

reasonableness afforded his within-Guidelines sentence.

             For    the     foregoing   reasons,        we    affirm    the    district

court’s   amended         criminal    judgment.         We     dispense       with   oral

argument because the facts and legal contentions are adequately



see also United States v. Palacios-Herrera, No. 10-4138, 2010 WL
4950000 (4th Cir. Dec. 3, 2010) (same); United States v.
Jimenez-Hernandez, 311 F. App’x 578, 579 (4th Cir. 2008) (same),
cert. denied, 129 S. Ct. 1598 (2009).



                                             6
presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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