                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4515


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVIER CHAY-DE LA CRUZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00102-RJC-1)


Submitted:   May 26, 2010                 Decided:     June 18, 2010


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael N. Loebl, FULCHER HAGLER LLP, Augusta, Georgia, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina; Kenneth Michel Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Javier Chay-De La Cruz pled guilty, without a plea

agreement,    to    illegal     reentry       of   a    deported        alien       after    a

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

§ 1326(a), (b)(2) (2006).            The court sentenced Chay-De La Cruz

to    fifty-seven   months      in   prison.       Chay-De         La   Cruz      appealed.

Defense counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), finding no meritorious grounds for appeal

but challenging the adequacy of the Fed. R. Crim. P. 11 hearing

and    questioning       the    reasonableness          of        Chay-De      La     Cruz’s

sentence.     Chay-De La Cruz filed a pro se supplemental brief

asserting claims of ineffective assistance of trial counsel. 1

            Because Chay-De La Cruz did not move in the district

court to withdraw his guilty plea, any error in the Rule 11

hearing is reviewed for plain error.                   United States v. Martinez,

277 F.3d 517, 525 (4th Cir. 2002) (discussing standard).                                   Our

careful    review   of    the   record    convinces          us    that     the     district

court substantially complied with the mandates of Rule 11 in

accepting    Chay-De     La    Cruz’s   guilty     plea       and    ensured        that    he

entered his plea knowingly and voluntarily and that the plea was




       1
       Chay-De La Cruz was represented by different counsel in
the district court.



                                          2
supported by an independent factual basis. 2                See United States v.

DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).

             Turning to Chay-De La Cruz’s sentence, we review his

sentence     for     reasonableness           under    an      abuse-of-discretion

standard.     Gall v. United States, 552 U.S. 38, 51 (2007).                       This

review requires appellate consideration of both the procedural

and substantive reasonableness of the sentence.                        Id.    We must

assess     whether    the    district     court       properly      calculated      the

guidelines       range,   considered     the    18    U.S.C.    §   3553(a)    (2006)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                   Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n

individualized       explanation       must    accompany       every     sentence.”);

United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).                         An

extensive explanation is not required as long as the appellate

court is satisfied “‘that [the district court] has considered

the parties’ arguments and has a reasoned basis for exercising

[its] own legal decisionmaking authority.’”                      United States v.

Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United

States,    551    U.S.    338,   356   (2007)).        Finally,     we    review    the

     2
       As counsel acknowledges, Chay-De La Cruz consented to
proceed before a magistrate judge for the plea hearing, and the
magistrate judge was properly authorized to conduct the Rule 11
hearing. United States v. Osborne, 345 F.3d 281, 288 (4th Cir.
2003).



                                          3
substantive       reasonableness      of   the       sentence,      “examin[ing]       the

totality    of     the    circumstances      to      see    whether   the    sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”                           United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

            Defense       counsel    questions         the     calculation      of     the

guidelines       range,    specifically        the    sixteen-level         increase    in

offense level imposed under U.S. Sentencing Guidelines Manual

§ 2L1.1(b)(1)(A) (2007), based on Chay-De La Cruz’s prior felony

conviction for transporting aliens for the purpose of commercial

advantage or private financial gain, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) (2006).            Section 2L1.1(b)(1)(A) calls for a

sixteen-level       enhancement      “[i]f      the    defendant      previously       was

deported . . . after . . . a conviction for a felony that is

. . .    an alien smuggling offense.”                 USSG § 2L1.1(b)(1)(A).           The

commentary to this section defines an “alien smuggling offense”

the same way it is defined in 8 U.S.C. § 1101(a)(43)(N) (2006).

That provision specifically references 8 U.S.C. § 1324(a)(1)(A),

the     statute     under    which    Chay-De          La    Cruz     was    previously

convicted.        We find no error in the application of the sixteen-

level enhancement.

            Our review of the record leads us to conclude that the

district court properly calculated Chay-De La Cruz’s guidelines

range,     considered       the   § 3553       factors,       considered      counsel’s

                                           4
arguments         and    Chay-De        La       Cruz’s    allocution,             and    adequately

explained the reasons for the sentence imposed.                                        We therefore

find that the sentence was procedurally reasonable.                                        Moreover,

nothing        in        the        record        overcomes        the         presumption             of

reasonableness           afforded          Chay-De        La     Cruz’s       within-guidelines

sentence.         United States v. Wright, 594 F.3d 259, 267 (4th Cir.

2010);      Rita        v.     United      States,        551     U.S.        338,       347     (2007)

(upholding rebuttable presumption of reasonableness for within-

guidelines sentence).

               In accordance with Anders, we have reviewed the record

for   any      meritorious           issues      for    appeal     and     have        found     none. 3

Thus,     we      affirm       the    district          court’s     judgment.            This    court

requires       that      counsel      inform       his     client,       in    writing,         of    his

right to petition the Supreme Court of the United States for

further     review.            If    the     client       requests       that      a     petition      be

filed,      but     counsel         believes       that     such     a    petition         would      be

frivolous,        then       counsel       may    move     for    leave       to    withdraw         from

representation. Counsel’s motion must state that a copy thereof

was   served        on    the       client.        We     dispense       with       oral       argument

      3
       We have reviewed the claims in Chay-De La Cruz’s pro se
supplemental brief.    Because it does not conclusively appear
from the record that Chay-De La Cruz was denied effective
assistance of counsel, we conclude that his claims are not
cognizable on direct appeal.   United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d
290, 295 (4th Cir. 1997).



                                                    5
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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