                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4536


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALEX PINEDA-MENDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:08-cr-00517-REP-1)


Submitted:   April 8, 2010                    Decided:   July 1, 2010


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and  Writing   Attorney, Richmond,   Virginia,   for  Appellant.
Neil H. MacBride, United States Attorney, S. David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Alex    Pineda-Mendez       pled           guilty     to    illegal        reentry

after previously being deported following a conviction for an

aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2006).                                  The court

varied upward from the guideline range and imposed a sentence of

seventy-two        months       imprisonment.               Pineda-Mendez          appeals       his

sentence,        contending       that      it       is        procedurally        unreasonable

because the district court (1) failed to explain the extent of

the variance; (2) imposed a sentence greater than necessary to

promote deterrence; (3) reached an unsupported conclusion that

he   was   a     drug    dealer;      and   (4)        failed       to     avoid      unwarranted

sentencing disparity.             Although the government suggests that we

should review the issue for plain error, Pineda-Mendez properly

preserved       the     issue    by   arguing         at       sentencing       for    a   within-

guideline sentence.             United States v. Lynn, 592 F.3d 572, 577-78

(4th Cir. 2010).          For the reasons explained below, we affirm the

sentence.

                The government requested a variance from the advisory

guideline       range     of    37-46    months           to    ninety      months      based    on

Pineda-Mendez’ repeated illegal entries, his failure to comply

with court orders relating to prior criminal convictions, the

danger     he    presented       to   the    public,            and   his       failure     to    be

deterred by previous sentences.                        Pineda-Mendez argued that a

sentence        above    the     guideline           range      would      be    greater     than

                                                 2
necessary.          He     asserted    that       he    returned        after     his    last

deportation only because his father had suffered traumatic brain

damage from an illness and he needed to earn money to pay the

medical expenses.            At the sentencing hearing, defense counsel

presented some documentation concerning Pineda-Mendez’ father’s

condition and argued that Pineda-Mendez had not fulfilled the

terms    of    prior      probationary        sentences      because       he     had    been

deported or was in custody, rather than because of disregard for

the    court’s      orders.        Defense    counsel       also    pointed       out    that

Pineda-Mendez        had    served     almost       all    of     his     prior    two-year

sentence      for    illegal       reentry,       rather    than    one     year    as    the

government had argued.

              Before imposing sentence, the district court observed

that    Pineda-Mendez        had    entered       the   country     illegally       several

times   and    had    received       the   maximum        federal    sentence      for    his

prior illegal reentry, as well as lenient treatment in the state

courts for other offenses.                 The court noted that Pineda-Mendez

showed “a pattern of entering, drug dealing, and re-entry and

drug dealing” in the past.                 The court noted that Pineda-Mendez

claimed    that      he    did   not   use    cocaine,      but     had    recently      been

convicted of possessing cocaine, from which the court inferred

that Pineda-Mendez possessed the cocaine with the intention of

selling it.



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              The court stated that the sentence must be one that

promoted respect for law, deterred Pineda-Mendez from violating

the immigration laws, and protected the public from his criminal

conduct.      The court decided that a sentence within the guideline

range   would          not    be   adequate     to    achieve      the   goals    of     the

sentencing statute.             The court then stated

       I believe that the sentence to be imposed here serves
       the purpose of providing a sentence that is sufficient
       but not greater than necessary to provide deterrence,
       to provide punishment, to promote respect for the law,
       and to protect the public from the defendant’s . . .
       propensity to commit illegal activities, and pursuant
       to 18 U.S.C. Section 3553(a) and having considered the
       guidelines only as advisory and having determined that
       a variance is appropriate, it is the judgment of the
       Court that the defendant, Alex Pineda-Mendez, is
       hereby committed to the custody of the United States
       Bureau of Prisons . . . for a term of 72 months.

              A    sentence        is   reviewed     for    reasonableness       under    an

abuse of discretion standard.                   Gall v. United States, 552 U.S.

38, 51 (2007).               This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id.;

see also Lynn, 592 F.3d at 575.                      After determining whether the

district      court       properly      calculated         the   defendant’s     advisory

guideline range, this court must decide whether the district

court considered the § 3553(a) factors, analyzed the arguments

presented         by    the     parties,      and     sufficiently       explained       the

selected sentence.              Id.; see United States v. Carter, 564 F.3d

325,    330        (4th        Cir.     2009)       (holding       that,    while        the


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“individualized         assessment         need      not    be    elaborate        or     lengthy,

. . . it must provide a rationale tailored to the particular

case    . . .    and     [be]    adequate         to    permit        meaningful         appellate

review”).        Properly preserved claims of procedural error are

subject to harmless error review.                        Lynn, 592 F.3d at 576.                     If

the    sentence     is       free    of     significant          procedural            error,      the

appellate court reviews the substantive reasonableness of the

sentence.        Id. at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

            Here,       the     court       properly        calculated           the    guideline

range      and     considered              the       § 3553(a)          factors,          focusing

particularly on the nature and circumstances of the offense,

Pineda-Mendez’         history       and    characteristics,               the   need        for   the

sentence    to     promote          respect       for      the    law,       afford      adequate

deterrence to Pineda-Mendez, and protect the public from his

criminal activity.            The court responded to the arguments of the

parties,     for       and    against        a       variance         sentence,        implicitly

rejecting       Pineda-Mendez’         contention          that       he    returned         to    the

United States only to earn money to pay for his father’s medical

expenses.        The     court       explained         that      it    believed         an    upward

variance    was     necessary          because          Pineda-Mendez            had    not        been

deterred by prior sentences.

            We     conclude         that    the      district         court’s     finding          that

Pineda-Mendez had regularly engaged in drug dealing when he was

                                                 5
in the United States was supported by the record.                                   In addition,

the district court “consider[ed] the extent of the deviation and

ensure[d] that the justification [was] sufficiently compelling

to support the degree of the variance.”                              Lynn, 592 F.3d at 582.

The court did not explain why it chose a sentence of seventy-two

months, but it did explain that a sentence within the guidelines

would   not    “promote          respect       for       the       law,     . . .    keep[]        the

defendant      from       violating          the        immigration          law     . . .        [or]

protect[] the people of this country from the crimes that he

commits    when     he’s    here        illegally.”                Thus    after    “considering

th[e]     defendant’s        history          and        the       record     that        he     ha[d]

assembled,” the court determined that a sentence of seventy-two

months would be “sufficient but not greater than necessary to

satisfy     the     objectives          of    the        sentencing         statute.”            This

deliberation is sufficient to satisfy Lynn.

             Even        assuming        that          the     court’s       explanation           was

insufficient, any error here was harmless under Lynn.                                            Under

harmless error review, the government may avoid reversal if the

error   “did       not    have    a     substantial            and    injurious          effect     or

influence     on    the”    result       and       “we       can[]    say    with        . . .    fair

assurance,         . . .         that        the        district           court’s         explicit

consideration        of    [the       defendant’s]            arguments       would       not     have

affected    the     sentence       imposed.”                 592    F.3d    at     585    (internal

citations and quotation marks omitted).                              In Lynn, we determined

                                                   6
that   the    government       failed   to     prove    harmlessness         because,

“[g]iven     the    strength    of    Lynn’s    arguments        for    a   different

sentence, we [could not] say with any fair assurance that the

district court’s explicit consideration of those arguments would

not have affected the sentence imposed.”               Id.

             By contrast, the evidence suggesting harmless error in

the present case is significantly stronger than it was in Lynn

for two reasons.        First, even assuming that the district court

committed procedural error in failing to explain its rejection

of Pineda-Mendez’s argument for a within-guideline sentence, the

record in this case leaves no doubt that the district court

considered his argument in the context of applying the § 3553(a)

factors.      The    court   listened    to    the    parties’      statements     and

arguments,    and    thereafter      stated    that    it    had   arrived    at   the

seventy-two-month sentence by considering all of the § 3553(a)

factors, emphasizing the need for deterrence.                       Second, unlike

the sentencing arguments presented by the defendant in Lynn, the

arguments     that     Pineda-Mendez         made     for    a     within-guideline

sentence were very weak.             He had entered the country illegally

several times, and his record showed a “pattern of entering,

drug dealing, and re-entry and drug dealing.”                          Moreover, his

argument for a within-guideline sentence amounted to a claim

that, if his record was severe, it was only because he needed to

enter this country to provide for his family in Honduras.                          But

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certainly that state of affairs is not atypical for a defendant,

and Pineda-Mendez produced no evidence that his circumstances

excused    repeated     instances      of       illegal      immigration    and       drug-

dealing,      so   as    to    require          a     within-guideline          sentence.

Consequently, we conclude that any error here was harmless.

              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




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