                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-5007


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JUAN ESPINOSA-MARTINEZ,

                  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. (7:07-cr-00021-FL)


Submitted:    March 26, 2009                 Decided:   April 22, 2009


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.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, Anne
M.   Hayes,   Banumathi  Rangarajan,   Assistant  United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Juan       Espinosa-Martinez     pled    guilty    without     a    plea

agreement to illegal reentry by a deported aggravated felon, in

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

appeals     his    118-month       sentence,     contending       that     it    is

unreasonable.      We affirm.



                                       I

            Espinosa-Martinez’s       base     offense    level   was    8.      See

U.S.   Sentencing       Guidelines   Manual     § 2L1.2       (2006).      Sixteen

levels were added because he previously was deported following a

conviction for a felony drug trafficking offense for which he

was sentenced to more than thirteen months in prison.                     See USSG

§ 2L1.2(b)(1)(A)(i).          He received a three-level reduction for

acceptance of responsibility.           See USSG § 3E1.1(b).             His total

offense level therefore was 21.

            Espinosa-Martinez’s        prior     convictions       resulted      in

thirty-five criminal history points.                Of these, only twenty-one

points were counted for the purpose of establishing his criminal

history category because USSG § 4A1.1(c) precluded the counting

of all points assigned to sentences of short duration.                           Two

points were added because he was on probation at the time he

committed the instant offense.          See USSG § 4A1.1(d).             One point

was added because he committed the subject offense less than two

                                       2
years following his release from custody.               See USSG § 4A1.1(e).

He had twenty-four total criminal history points, placing him in

criminal history category VI (thirteen or more criminal history

points).

             His   advisory     Guidelines   range     was   77-96     months    in

prison.      The United States moved for an upward departure on the

ground     that    Espinosa-Martinez’s       criminal        history    category

inadequately represented his criminal history and the likelihood

that he would commit other crimes.               The district court agreed

with   the    United   States    and   granted   the    motion.        Using    the

incremental approach, see United States v. Dalton, 477 F.3d 195,

199 (4th Cir. 2007), the court departed upward to offense level

24, for an advisory Guidelines range of 100-125 months.

             After hearing from counsel and Espinosa-Martinez and

considering the 18 U.S.C. § 3553(a) (2006) factors, the court

sentenced him to 118 months in prison. In imposing sentence, the

court took note of his twenty-five year criminal history, which

included two previous federal convictions and two deportations,

as well as the number of criminal history points, both counted

and uncounted.         The court expressed the need to protect the

public from further criminal activity.




                                        3
                                                II

              We    review     a   sentence          for    reasonableness,      using      the

deferential abuse of discretion standard.                          See Gall v. United

States, 128 S. Ct. 586, 597 (2007).                         We first consider whether

the district court committed any significant procedural errors.

United States v. Evans, 526 F.3d 155, 162 (4th Cir.), cert.

denied, 129 S. Ct. 476 (2008).                        If not, we then consider the

substantive         reasonableness         of       the     sentence,     “tak[ing]        into

account the totality of the circumstances, including the extent

of any variance from the Guidelines range.”                        Gall, 128 S. Ct. at

597.      While we may presume a sentence within the Guidelines

range    to    be   reasonable,       we    may       not    presume    that    a    sentence

outside that range is unreasonable.                        Id.   Moreover, we must give

due     deference      to    the     district          court’s     decision         that   the

§ 3553(a) factors justify imposing a variant sentence and its

determination regarding the extent of any variance.                            Id.

              The district court may depart upward from an advisory

Guidelines range “[i]f reliable information indicates that the

defendant’s         criminal       history          category     substantially         under-

represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.

. . . ”       USSG § 4A1.3(a).        In deciding whether a departure under

§ 4A1.3       is    warranted,       the        sentencing        court    may       consider

uncounted prior sentences, USSG § 4A1.3(a)(2), as well as parole

                                                4
and probation violations, United States v. Lawrence, 349 F.3d

724, 728 (4th Cir. 2003).

          We   conclude      that    Espinosa-Martinez’s           sentence   is

reasonable.    In this regard, we note that the district court

properly calculated the Guidelines range, treated the Guidelines

as advisory, considered the applicable § 3553(a) factors, and

adequately explained its reasons for the fact and extent of the

departure.     See   Gall,   128    S.       Ct.   at   597;   United   States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).



                                     III

          We therefore affirm. *             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




     *
       To the extent that Espinosa-Martinez contends that his
criminal history was impermissibly double-counted, we reject
this claim.   See United States v. Torres-Echavarria, 129 F.3d
692, 698-99 (2d Cir. 1997); United States v. Crawford, 18 F.3d
1173, 1179 (4th Cir. 1994).



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