                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-5090


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NOE AGUILERA AGUILA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (4:10-cr-00053-FL-1)


Submitted:   March 30, 2011                     Decided:   June 28, 2011


Before MOTZ and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.     George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Noe Aguilera Aguila (“Aguila”) appeals his ten-month

sentence    for     violation     of    his       term   of    supervised    release.

Aguila     argues     that      his     revocation           sentence   is    plainly

unreasonable      because    the      district       court     failed   to   give   an

adequate explanation for the sentence it chose.                      For the reasons

that follow, we affirm.

            In 2009, Aguila pled guilty to possession of a firearm

by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) &

924(a)(2)     (2006).        He        was       sentenced     to   twelve    months’

imprisonment      followed      by      three      years’      supervised    release.

Aguila began his term of supervision on June 3, 2009.                        He also

was deported.

            On August 20, 2010, a probation officer petitioned the

district court for revocation of Aguila’s term of supervised

release.       The    probation        officer       explained      Aguila   had,   in

violation of the terms of his supervised release, engaged in

criminal conduct.        Specifically, Aguila had been arrested for

misdemeanor larceny, and he also subsequently pled guilty to

illegal reentry by an aggravated felon.

            Aguila did not dispute at his revocation hearing that

he had committed the acts in question, nor did he ask for a

below-policy-statement-range sentence.                   However, he requested a

sentence at the low end of the four- to ten-month range, asking

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the court to consider that he was already serving two years for

his illegal reentry, had once been granted temporary protected

status    in    the       United    States,        had    served      six    years       in    the

military of his native Honduras, and had come to the United

States to escape poverty.                The Government sought a sentence at

the high end of the policy statement range, noting that in the

course of committing the possession of a firearm by an illegal

alien offense, Aguila had brandished or attempted to brandish a

firearm in the presence of a police officer.                            Furthermore, the

Government pointed out that Aguila was deported shortly after

serving    his       prison      term,   but       that    he    quickly      returned         and

committed another crime, namely the larceny.

               After hearing argument from the parties, the district

court    imposed      a    ten-month     sentence,         the   top    of    the    advisory

policy    statement         range.       The       court    explained         that       it    had

considered       the      policy     statements           pertaining         to    revocation

sentences in Chapter Seven of the federal sentencing guidelines

and     that    a     ten-month      sentence        accomplished           the     goals       of

sentencing and reflected the guidelines policies.

               Because Aguila did not request a sentence outside the

policy statement range, we review his challenge to the adequacy

of the explanation for his sentence for plain error.                               See United

States     v.       Thompson,      595   F.3d        544,       546    (4th       Cir.        2010)

(explaining         in     the     probation        revocation         context       that       “a

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defendant      need    only       ask     for    a     sentence    outside       the    range

calculated by the court prior to sentencing in order to preserve

his claim for appellate review”); United States v. Lynn, 592

F.3d 572, 580 (4th Cir. 2010) (finding error not preserved where

defendant     failed       to    seek   sentence        outside    guidelines          range).

“To    establish      plain      error,    [Aguila]       must    show    that    an    error

occurred, that the error was plain, and that the error affected

his substantial rights.”                United States v. Muhammad, 478 F.3d

247,    249   (4th     Cir.      2007).         Even    if   Aguila      satisfies      these

requirements,        “correction        of      the    error     remains    within       [the

court’s] discretion, which [the court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public    reputation        of     judicial         proceedings.”          Id.    (internal

quotation      marks       and    citation       omitted)      (third      alteration      in

original).

              In     the        sentencing          context,      an     error         affects

substantial rights if the defendant can show that the sentence

imposed “was longer than that to which he would otherwise be

subject.”      United States v. Angle, 254 F.3d 514, 518 (4th Cir.

2001) (en banc); see also United States v. Miller, 557 F.3d 910,

916 (8th Cir. 2009) (“In the sentencing context, an error was

prejudicial only if there is a reasonable probability that the

defendant would have received a lighter sentence but for the



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error.”). We conclude Aguila cannot meet this rigorous standard

on this record.

              Aguila’s disregard for the law, demonstrated by his

rapid return to the United States following deportation and his

commission of yet another offense, militates against a finding

that his substantial rights were affected by any inadequacy in

the district court’s explanation of his sentence.                         Moreover,

Aguila fails to argue, and nothing in the record indicates, that

the court would have imposed a lighter sentence had it provided

a more thorough explanation.

              Accordingly,   we   conclude        Aguila’s    challenge     to   his

revocation sentence cannot withstand plain error review, as he

cannot establish that any error by the district court affected

his   substantial      rights.       We    therefore       affirm   the   district

court’s judgment.        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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