                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4829


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JULIO SPIRO DIBBI,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00233-NCT-1)


Submitted:   January 31, 2011                Decided:   February 24, 2011


Before AGEE and      DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William E. West, Jr., Winston-Salem, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Frank J.
Chut, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Julio Spiro Dibbi pled guilty to aiding and abetting

the filing of false tax returns, 26 U.S.C. § 7206(2) (2006)

(Count One), and interfering with Internal Revenue Service (IRS)

laws, 26 U.S.C. § 7212(a) (2006) (Count Two), and was sentenced

at the bottom of his advisory guideline range to a term of

thirty     months     imprisonment.           Dibbi      appeals      his     sentence,

contending that the district court erred by denying his request

for either a departure or variance sentence below the guideline

range based on his poor health and advanced age.                     We affirm.

            A     district     court’s     refusal       to    depart        below    the

applicable guidelines range does not provide a basis for appeal

under 18 U.S.C. § 3742(a) (2006), “unless the court failed to

understand its authority to do so.”                    United States v. Brewer,

520 F.3d 367, 371 (4th Cir. 2008); see United States v. Allen,

491 F.3d 178, 193 (4th Cir. 2007) (declining to disturb the

district    court’s       post-United    States     v.    Booker,      543    U.S.     220

(2005),    sentence       where    the   court    understood         its    ability     to

depart    below     the    guidelines     but    declined       to    exercise       such

authority).

            Dibbi     contends      on   appeal    that       the    district        court

believed    it    lacked     the   authority      to     depart.       However,        his

argument     simply       mischaracterizes        the     court’s      finding        that

Dibbi’s health and age did not warrant a departure.                          The record

                                          2
reveals no confusion on the court’s part about its authority to

depart if circumstances warranted.

            With    respect     to   the       court’s       decision    not        to   vary

downward, we review a sentence, “whether inside, just outside,

or    significantly       outside    the        Guidelines       range,”        under      a

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

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

first ensure “that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) [2006]

factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence.”                               Id. at

51.   “When rendering a sentence, the district court must make an

individualized       assessment      based        on     the     facts     presented,”

applying     the    “relevant    §   3553(a)           factors    to     the    specific

circumstances of the case before it.”                   United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

emphasis omitted).        The court must also “state in open court the

particular    reasons     supporting       its     chosen      sentence”        and      “set

forth enough to satisfy” us that it has “considered the parties’

arguments    and    has   a   reasoned     basis       for    exercising       [its]      own

legal decisionmaking authority.”                Id. (internal quotation marks

omitted).

                                           3
           If the sentence is free from procedural error, we then

review it for substantive reasonableness.                Gall, 552 U.S. at 51.

“Substantive reasonableness review entails taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’”               United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).   Even if we would have imposed a different sentence, “this

fact alone is ‘insufficient to justify reversal of the district

court.’”   Id. at 474 (quoting Gall, 552 U.S. at 51).

           Dibbi does not claim that the district court erred in

calculating his guideline range.                 This court presumes that a

sentence imposed within the properly calculated guidelines range

is reasonable.         United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)

(upholding appellate presumption of reasonableness for within-

guidelines    sentence).        We   conclude     that   Dibbi    has   failed       to

overcome     the      presumption    of   reasonableness        for   his     within-

guidelines    sentence.         In   rejecting     counsel’s      request      for    a

downward variance, the court considered the § 3553(a) sentencing

factors    and     determined    that     they    were   best    served       by   the

imposition       of     a   within-guidelines       sentence.           The    court

emphasized that a variance was not warranted based on Dibbi’s

health and age, particularly in light of the seriousness of the

offense and the fact that Dibbi continued his criminal conduct

                                          4
over    a   period        of    years    and     tried       to    cover       his    crimes     by

convincing others to lie to the IRS.

               Dibbi also claims that the district court failed to

exercise       its    discretion         to     vary       below   the     guideline          range

because it improperly considered his status as a naturalized

citizen.       While national origin, along with race, sex, religion

and socio-economic status are not relevant to sentencing, see

U.S. Sentencing Guidelines Manual § 5H.10 (2009), the district

court did not focus on any of these factors.                                   The court did

comment      on      Dibbi’s         immigrant        background         and     his     seeming

ingratitude in breaking the laws of a country that had “treated

[him]    well.”        The      court    made     the      comments      while       considering

whether Dibbi’s conduct warranted a sentence above the guideline

range, rather than as a reason for refusing to vary below the

range.      We conclude that the court’s comments did not render the

sentence unreasonable.

               We    therefore         affirm        the    sentence       imposed       by     the

district     court.            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




                                                 5
