                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5316


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROSELIO GARCIA-AGUILERA,     a/k/a   Paulino   Vargas-Valencia,
a/k/a Pedro Lopez-Lopez,

                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. (5:10-cr-00240-FL-1)


Submitted:   July 28, 2011                 Decided:   August 1, 2011


Before SHEDD, AGEE, and DIAZ, 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Affirmed by unpublished per curiam opinion.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,
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Unpublished opinions are not binding precedent in this circuit.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:

            Roselio Garcia-Aguilera pled guilty to illegal reentry

by a convicted felon, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2006).      He    was    sentenced     to       96    months’     imprisonment.      On

appeal,     Garcia-Aguilera          argues       that       his   sentence      is   not

reasonable.       We affirm.

            We      review       Garcia-Aguilera’s             sentence       under    a

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

States, 552 U.S. 38, 41 (2007).                   This review entails appellate

consideration        of       both    the        procedural         and     substantive

reasonableness      of    a   sentence.          Id.    at   51.     Garcia-Aguilera,

however, does not contest the procedural reasonableness of his

sentence.

            In    determining        whether      a    sentence     is    substantively

reasonable, this court “tak[es] 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).                             This court

accords a sentence within a properly-calculated Guidelines range

an appellate presumption of reasonableness.                         United States v.

Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).                        Such a presumption

is rebutted only by showing “that the sentence is unreasonable

when measured against the [18 U.S.C.A.] § 3553(a) [(West 2000 &

Supp. 2011)] factors.”           United States v. Montes–Pineda, 445 F.3d

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375, 379 (4th Cir. 2006) (internal quotation marks omitted).

            Here,   the     district        court         calculated            an       unchallenged

advisory Guidelines range of seventy-seven to ninety-six months’

imprisonment.       Defense       counsel           argued         for    a     sentence        at   the

bottom of the Guidelines range in light of Garcia-Aguilera’s

impoverished     childhood       and       long       history           of    substance         abuse.

The   district      court        ultimately              accepted             the        Government’s

recommendation and sentenced Garcia-Aguilera at the top of the

Guidelines range, noting his “egregious criminal history” and

undeterred      conduct    over       the   years.                 To     the    extent         Garcia-

Aguilera argues that the district court should have adopted his

policy argument relating to the applicable Guideline in this

case directing a sixteen-level enhancement, the presumption of

reasonableness is not overcome simply because the district court

failed     to   reject     the    policy         of       a       Guideline.              See    United

States v. Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.)

(explaining      that,     although         “district               courts          certainly        may

disagree with the Guidelines for policy reasons and may adjust a

sentence    accordingly[,]        .    .    .       if    they       do      not,    we     will     not

second-guess      their    decisions            under         a    more       lenient       standard

simply   because    the     particular              Guideline           is    not        empirically-

based”), cert. denied, 130 S. Ct. 192 (2009).                                   We conclude the

district    court    did    not       abuse         its       discretion            in    sentencing



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Garcia-Aguilera        and     that   his    sentence       is   substantively

reasonable.

           Accordingly, we 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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