                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4653


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SERGIO RENE RAMIREZ-MORAZAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:11-cr-00018-H-1)


Argued:   December 7, 2012                 Decided:   January 8, 2013


Before WILKINSON, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.      Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Sergio Rene Ramirez-Morazan entered a guilty plea to one

count of unlawful entry into the United States, in violation of

8 U.S.C. § 1326(a) and (b)(2).        The district court sentenced

Ramirez-Morazan to a term of 46 months’ imprisonment, at the low

end of his advisory Sentencing Guidelines range.           On appeal,

Ramirez-Morazan    primarily   contends   that   the   district   court

committed procedural error in allegedly stating that it lacked

authority to impose a lower sentence under 18 U.S.C. § 3553(a),

on the basis that the district in which he was sentenced did not

have a “fast track” sentencing program. 1        Upon our review, we

hold that the district court did not commit procedural error,

and we affirm the district court’s judgment imposing sentence on

Ramirez-Morazan.




     1
       “‘Fast-tracking’ refers to a procedure originally approved
for use in states along the United States-Mexico border, where
district courts experienced high caseloads as a result of
immigration violations.” United States v. Perez-Pena, 453 F.3d
236, 238 (4th Cir. 2006).      Federal prosecutors employing this
procedure   seek   pre-indictment   guilty  pleas  from  eligible
individuals in exchange for a motion for downward departure
under § 5K3.1, p.s., of the United States Sentencing Guidelines
Manual.    Under directive of the United States Department of
Justice, this procedure now is approved for use by federal
prosecutors throughout the United States. Memorandum from James
M. Cole, Deputy Attorney General, to all United States Attorneys
(Jan. 31, 2012), available at: http://www.justice.gov/dag/fast-
track-program.pdf.



                                  2
                                      I.

     In August 2009, Ramirez-Morazan was arrested in Raleigh,

North Carolina, on drug-trafficking charges.           Thereafter, United

States Immigration and Customs Enforcement officers initiated a

“background” investigation of Ramirez-Morazan, which determined

the following facts.      Ramirez-Morazan, a citizen of El Salvador

who was living in the United States illegally, had been deported

on three prior occasions: from California in 1992, from Texas in

1993,     and   from   Arizona   in    2002.      Among      other     criminal

convictions,     Ramirez-Morazan      had   a   California     state    felony

conviction in 1991 for “Possession of Marijuana for Sale” (the

marijuana conviction).

     In January 2011, Ramirez-Morazan was charged in the United

States District Court for the Eastern District of North Carolina

on one count of being present unlawfully in the United States

after having been deported on each of three prior occasions, and

after having been convicted of an aggravated felony, namely, the

marijuana conviction, all in violation of 8 U.S.C. § 1326(a) and

(b)(2).     Ramirez-Morazan pleaded guilty to the charge as stated

in the indictment.

     A presentence report (the PSR) was prepared for Ramirez-

Morazan, in which the probation officer recommended an advisory

Guidelines range of between 46 and 57 months’ imprisonment.                 At

the sentencing hearing, the district court adopted the PSR’s

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findings without objection.                The court also discussed Ramirez-

Morazan’s background, expressing concern about his three prior

deportations       and    his     criminal       history      involving     the      felony

marijuana conviction.

       During     the    hearing,      Ramirez-Morazan          initially       asked    the

district court “to consider the disparity” caused by “the lack

of any kind of fast track or early dispositions program in this

district compared to other districts.”                       He argued that he “may

qualify for one or more of the different types of programs,”

because,     among      other    things,    he       promptly    pleaded    guilty       and

otherwise cooperated with prosecutors, and also was willing to

be    deported    immediately.          Ramirez-Morazan          contended       that    the

purposes     of   sentencing       could    be       achieved   by    imposition        of   a

lower sentence in his case, just as those sentencing purposes

are     fulfilled       when     similarly-situated           defendants        in     other

districts are sentenced under fast track programs.

       The district court stated, “I don’t have that authority.”

The court further stated that “there are districts with the fast

track    program,”       but    that   “[o]ur        district   has    never     had    that

issue or had that authority, and so I can’t depart on that

basis.”

       In   response,      Ramirez-Morazan           clarified    that     he    was    “not

asking      the   Court    to    proclaim        a    fast   track    sentence.”             He

explained that, instead, he was asking the court to “take []

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into consideration under 3553(a)” the disparity created by the

lack of a fast track program in the district, his cooperative

behavior    in    this   case,   and    his      willingness    to    be    deported

immediately.        Ramirez-Morazan      thereafter         asked    the    district

court to impose a lower sentence on those grounds.

     The district court did not directly address this argument.

The court considered Ramirez-Morazan’s advisory Guidelines range

and the factors set forth in § 3553(a), and imposed a sentence

of 46 months’ imprisonment.        Ramirez-Morazan timely appealed.



                                       II.

     We review a sentence imposed by a district court under a

deferential       abuse-of-discretion           standard.      Gall    v.     United

States, 552 U.S. 38, 41 (2007).                 In conducting our review, “we

must first ensure that the district court has not committed any

‘significant procedural error.’”                 United States v. King, 673

F.3d 274, 283 (4th Cir.), cert. denied, 133 S. Ct. 216 (2012)

(citation omitted).         Such procedural errors include “failing to

calculate     (or   improperly    calculating)         the    Guidelines     range,

treating the Guidelines as mandatory, failing to consider the

§   3553(a)      factors,   selecting       a    sentence    based    on    clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”       United States v. Susi, 674 F.3d 278, 282 (4th Cir.

2012) (quoting Gall, 552 U.S. at 51).                 Only after we determine

                                        5
that a sentence was imposed without significant procedural error

do we consider its substantive reasonableness. 2                          United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).

       Ramirez-Morazan’s           main       contention      on    appeal      is    that       the

district         court    committed       procedural         error:      (1)    by    allegedly

stating that it lacked “authority” under § 3553(a) to consider

sentencing        disparities          resulting      from    the     absence        of    a    fast

track sentencing program in a particular district; and (2) by

rejecting         the    defendant’s       request      for    a    sentence         below      his

Guidelines range.               According to Ramirez-Morazan, this type of

sentencing         disparity       is     a     permissible         consideration              under

Kimbrough v. United States, 552 U.S. 85 (2007).                                Thus, Ramirez-

Morazan contends that Kimbrough casts doubt on our decision in

United      States       v.    Perez-Pena,      453    F.3d    236,      243-44      (4th      Cir.

2006), in which we held that sentencing disparities resulting

from the limited availability of fast track sentencing programs

were       not    “unwarranted”         disparities,          within      the     meaning         of

§   3553(a)(6),          and    thus    could    not    serve       to   support          sentence

variances on that basis.

       We do not address the merits of this argument, however,

because the argument is based on a false premise.                                    The record

       2
       Because Ramirez-Morazan does not contest the substantive
reasonableness of his sentence, we limit our discussion to the
procedural reasonableness inquiry.



                                                6
before     us   refutes     Ramirez-Morazan’s               characterization            of   the

district    court’s    ruling.           The       sentencing       hearing       transcript,

quoted in relevant part above, reflects that the district court

did not indicate that it lacked “authority” to consider under

§ 3553(a) sentencing disparities resulting from the availability

of a fast track sentencing program in a given district.                                 Rather,

the   district     court’s       statement           that     it     lacked       “authority”

related    to   Ramirez-Morazan’s          initial          argument       that    he    should

receive a below-Guidelines sentence simply because he met the

requirements      of      fast     track           programs        available       in    other

districts.

      We    conclude      that     the     district          court        did     not    commit

procedural error in its application of § 3553(a).                               The court was

not required to “robotically tick through” every subsection of

§ 3553(a), United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006),     as   long   as    the    court           conducted        an    “individualized

assessment based on the facts presented,” Gall, 552 U.S. at 50.

Despite Ramirez-Morazan’s conclusory statement to the contrary,

the district court gave adequate, individualized consideration

to his offense, his criminal history, and his background, and




                                               7
imposed a sentence only after weighing the advisory Guidelines

range and the § 3553(a) factors. 3

      We also have considered Ramirez-Morazan’s other arguments,

and we conclude that they have no merit. 4           Accordingly, we affirm

the   district   court’s   judgment       imposing   sentence   on   Ramirez-

Morazan.

                                                                     AFFIRMED




      3
       Ramirez-Morazan’s argument that the district court treated
the Guidelines as mandatory also is refuted by the record. The
court recognized that the Guidelines were “advisory,” and stated
that the sentence was imposed in conformance with United States
v. Booker, 543 U.S. 220 (2005).
      4
       At oral argument, Ramirez-Morazan argued that the district
court erred under United States v. Lynn, 592 F.3d 572 (4th Cir.
2010), because the court did not address adequately the issue
whether the absence of a fast track program in the district
could be considered under § 3553(a).        Ramirez-Morazan also
argued that if the district court thought that it lacked
authority   to   depart   below   Ramirez-Morazan’s   recommended
Guidelines range because he was not sentenced in a fast-track
district, that conclusion also constituted procedural error
under Kimbrough. These issues are waived, however, because they
were not raised in Ramirez-Morazan’s opening brief on appeal.
See United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012).



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