                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-4053


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JUAN LUIS LLAMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00400-FDW-4)


Argued:   January 27, 2012                  Decided:   April 4, 2012


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.   ON BRIEF: Claire J. Rauscher,
Executive Director, Allison Wexler, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina; Kevin Tate,
Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.        Lanny A.
Breuer, Assistant Attorney General, Greg D. Andres, Acting
Deputy Assistant Attorney General, Ellen R. Meltzer, Patrick M.
Donley, Peter B. Loewenberg, UNITED        STATES   DEPARTMENT   OF
JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Juan    Luis     Llamas    appeals          his      sentence      imposed      following

remand    for       resentencing.                He     contends         his     sentence    is

procedurally         unreasonable            because            the      district      court’s

explanation     incorporated           by        reference         its     analysis    of   the

§ 3553(a) factors from the original sentencing hearing, and he

contends the sentence is substantively unreasonable because it

is greater than necessary under the § 3553(a) factors.                                 Finding

no error, we affirm.



                                                 I.

      The facts of this case are well known to the parties and

the Court, and are recounted in greater detail in the prior

appeal. See United States v. Llamas, 599 F.3d 381, 383-85 (4th

Cir. 2010). We therefore present only a brief summary.

      Llamas        participated            in        an     elaborate           telemarketing

sweepstakes         scheme    operating           in       Costa      Rica.      Approximately

sixteen      call     centers    used        the        same       basic       technique,   but

functioned independently of each other. Llamas worked at one of

the   call    centers,       working    his          way   up    from      a   translator   and

security guard to a “room boss” or “office manager.” Id. at 384.

After working at the call center for approximately nine months,

Llamas withdrew from the scheme and returned to his home in

California.

                                                 3
      As a result of his conduct, Llamas was named in a multi-

defendant indictment in the Western District of North Carolina.

He pleaded guilty to one count of conspiracy to defraud the

United States, in contravention of 18 U.S.C. § 371; forty-two

counts of wire fraud, in violation of 18 U.S.C. § 1343; one

count of conspiracy to commit money laundering, in violation of

18 U.S.C. § 1956(h); and nineteen counts of money laundering, in

violation of 18 U.S.C. § 1956(a)(1). 599 F.3d at 385.

      Although Llamas’ presentence investigation report (“PSR”)

reflected a base offense level of seven, numerous adjustments

for   offense-specific   characteristics       resulted     in   an   adjusted

offense level of thirty-five. 1 At his first sentencing hearing,

Llamas objected to imposition of the “vulnerable victim” and the

three-level   “aggravating   role”       increases.   The   district    court

considered the parties’ arguments regarding the appropriateness

of the adjustments, and found that both should be imposed. The

      1
       The PSR recommended a sixteen-level increase based on the
$1.1 million loss attributed to the call center during the
period Llamas worked there (U.S.S.G. § 2B1.1(b)(1)(I)); a six-
level increase based on there being approximately five hundred
victims (§ 2B1.1(b)(2)(C)); a two-level increase because the
conspirators misrepresented they were acting on behalf of a
government agency (§ 2B1.1(b)(8)); a two-level increase because
a substantial amount of the fraud occurred outside the United
States (§ 2B1.1(b)(9)); a three-level increase based on Llamas’
managerial or supervisory role in the offense (§ 3B1.1(b)(1)); a
two-level increase because the majority of the scheme’s victims
were unusually vulnerable (§ 3A1.1(b)(1)); and a three-level
reduction for acceptance of responsibility (§ 3E1.1)).



                                     4
court then calculated Llamas’ advisory Guidelines range to be

151 to 188 months’ imprisonment, and imposed a below-Guidelines

sentence        of       132      months.        It       also    ordered        $4.27    million

restitution, relying on the losses caused by not only the call

center where Llamas worked, but also the other fifteen Costa

Rican call centers. 599 F.3d at 385-87.

     In     the          initial     appeal,          Llamas      did    not      challenge     his

conviction, but did raise three issues regarding his sentence.

He asserted the district court erred in applying the vulnerable

victim adjustment; applying the aggravating role adjustment; and

improperly calculating the amount of loss for which he could be

held responsible in the restitution order. Id. at 387. We held

“that     the     [district]         court’s          application          of    the   vulnerable

victim    adjustment           was   procedurally            [un]reasonable”           given   that

the court “failed to provide a sufficient explanation of its

finding    that          Llamas    should    have         known     that    his    victims     were

unusually       vulnerable.”         Id.     at       388-89.     But      we   held    that   “the

district court did not clearly err in . . . find[ing] that

Llamas    was        a    supervisor        of    the       [call       center’s]      employees,

rendering the [aggravating role] adjustment appropriate.” Id. at

389-90.    Lastly,          we     held—as       the      Government        conceded—that      the

district        court      “abused     its       discretion         with        respect   to   the

restitution order” because the Mandatory Victims Restitution Act

of 1996 only permits a defendant to be liable for restitution

                                                      5
for losses “caused by the offense,” i.e., losses attributable to

the    one    call     center’s      activity      as       opposed        to    the    losses

attributable to all sixteen call centers. Id. at 390-91. For

these reasons, we affirmed Llamas’ sentence in part, vacated it

in part, and remanded “for such other and further proceedings as

may be appropriate.” Id. at 391.

      On     remand,    the    parties      stipulated           as   to   the    amount      of

restitution that should be ordered, but once again disagreed as

to the proper calculation of the Guidelines range, as well as to

an    appropriate      sentence      under       the    §    3553(a)        factors. 2       The

district     court     heard   the       parties   regarding          their      view   of    an

appropriate sentence under the § 3553(a) factors. As discussed

in greater detail below, throughout those arguments, the court

engaged      the   parties     in    a    discussion        of    their     reasoning        and

support for their positions. At the conclusion of the hearing,

the district court imposed a below-Guidelines sentence of 126

months’ imprisonment and ordered $1,685,252.46 restitution. In

so doing, the court stated:

      The Court now is to the point of considering the
      sentencing factors as they apply specifically to Mr.
      Llamas’   case.  The  Court  did  consider  all  the

      2
        Because Llamas does not challenge his Guidelines
calculation, we do not need to address that stage of the
resentencing.  The  district court’s recalculation of the
Guidelines range yielded a term of 151 to 188 months’
imprisonment.



                                             6
     sentencing factors in December of 2008, particularly
     starting on line 3 of page 161 of the transcript of
     that hearing, which is Document 312 on the record.
          The Court readopts all its analysis of the
     sentencing factors that it did at that time, and
     reapplies all those analysis as if the Court were
     restating it today.
          The Court does want to supplement its analysis,
     though, as the parties recall, the Court did [vary]
     downwardly 19 months because the Court was trying to
     avoid a disparate sentence the Court believes was
     occurring between [a co-defendant] and Mr. Llamas. The
     Court once again readopts that 19-month variance.
          The Court also wants to add that it has
     considered the sentencing factors of restitution which
     is set forth at [§ 3553(a)(7)].
          [The court then explained its earlier error as to
     restitution, and imposed a different amount. It
     continued that it] believes a modest addition to the
     variance is appropriate in this case.
          So the Court varied last time to 19 months. The
     Court believes a 25-month variance is appropriate in
     this case, so it adds in the sentencing factor of
     restitution,   which   the  Court   had   miscalculated
     previously.
          With that said, the Court wants to emphasize it
     has considered all of the sentencing factors set forth
     in Section 3553(a). It has readopted its analysis of
     the discussion of the sentencing factors from the
     prior sentencing hearing . . . . It has supplemented
     its analysis of sentencing factors today. It is now
     ready to state a sentence it believes is sufficient
     but not greater than necessary to accomplish the goals
     of sentencing.

     Llamas   noted   a   timely   appeal,   and   we   have   jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).




                                     7
                                               II.

       In   this     appeal,       Llamas       challenges            the     procedural      and

substantive reasonableness of his sentence, both of which we

review under the deferential abuse of discretion standard. See

Gall   v.   United       States,      552      U.S.       38,    51     (2007)(“[A]ppellate

court[s] must review the [procedural] . . . . [and] substantive

reasonableness        of     the     sentence            imposed      under     an    abuse-of-

discretion        standard.”).       We     are          required       to    consider     first

“whether the district court committed a significant procedural

error in imposing the sentence under § 3553. If no procedural

error was committed, [we] can only vacate a sentence if it was

substantively       unreasonable          in    light       of     all       relevant    facts.”

United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009)(citing

United States v. Curry, 523 F.3d 436, 439 (4th Cir. 2008)).



                                               A.

       Llamas     first     challenges         the       procedural      reasonableness        of

his    sentence,      asserting       that          the     district         court    erred    by

incorporating       by     reference        the      §    3553(a)       analysis      from    the

original    sentencing        proceeding            rather       than    conducting       a   new

analysis. He contends the district court’s method ignored the

arguments he raised at the resentencing hearing, which included

new    information         related     to      a     sentencing          disparity       between

himself     and    his     co-defendants.            He    argues       that    the     district

                                                8
court’s statements at the original sentencing “cannot reflect

consideration of [his] arguments at resentencing.” In addition,

Llamas claims that the rationale the district court provided in

the original sentencing was flawed because it was “unmoored from

§    3553(a)”    and    relied       only    on    certain      unfavorable      §   3553(a)

factors while overlooking those that weighed in his favor.

       A district court commits a procedural error in sentencing

if it “fail[s] to consider the § 3553(a) factors, select[s] a

sentence      based     on     clearly       erroneous         facts,     or    fail[s]   to

adequately explain the chosen sentence—including an explanation

for any deviation from the Guidelines range.” United States v.

Savillon-Matute,        636     F.3d     119,      123     (4th   Cir.     2011)(internal

quotation marks and citations omitted). As is evident from the

recitation above, the district court’s statements at the time it

announced Llamas’ sentence were limited, relying largely on the

reincorporation of its prior comments. However, when considered

in its entirety, the resentencing hearing demonstrates that the

district court carefully considered each of Llamas’ arguments

and    we   therefore        cannot    say    that       the   court’s     statements     at

sentencing constitute a reversible procedural error.

       Llamas’       argument        that     the     district          court    erred    by

incorporating its comments from the earlier proceeding centers

on    his   belief     that    the    district       court      ignored    his    arguments

during      resentencing.       But    the        record    belies      that    contention.

                                              9
Paramount is the fact that the district court imposed—for the

second time—a below-Guidelines sentence, thus indicating that it

agreed    with    Llamas    that     the    §   3553(a)       factors    warranted   a

measure of additional leniency in his sentence. 3 In fact, at the

resentencing,      the     district    court        granted     a   below-guidelines

variance of six months more than at the first sentencing.

      Moreover,     the    district        court    was      clearly   familiar   with

Llamas and the original proceeding, having not only conducted

the original sentencing hearing, but also indicating that the

judge had re-read the transcript from the original proceeding

and   referring    to     specific    parts        of   it   during    re-sentencing.

Furthermore, the court engaged in frequent exchanges with Llamas

throughout the resentencing hearing, clarifying, contradicting,

and questioning the arguments in such a manner that it is clear




      3
       Specifically, at the original sentencing hearing, the
district court stated that it had “considered all the sentencing
factors set forth in 3553(a),” found Llamas’ conduct to be
“egregious” and part of a “very sophisticated operation . . .
targeting victims in the United States, some of whom were
vulnerable in age and mental acuity,” and that the “extent of
the victimization is extraordinary.” J.A. 474-75. In addition,
the court noted several of the § 3553(a) factors weighed in
Llamas’ favor, including Llamas’ lack of a relevant criminal
history record, his “great success in rehabilitation,” his
contribution to society except for “this grievous deviation,”
the lack of a need to deter others, and the need to avoid
unwarranted sentencing disparities. J.A. 475-76.



                                           10
he was hearing and considering Llamas’ arguments. 4 For example,

during       Llamas’      argument       regarding      sentence       disparities    for

individuals convicted of fraud, the district court questioned

Llamas, “Where do those statistics come from because they seem

to be [in]consistent with the Sentencing Guidelines?” J.A. 638.

This       query    not   only    provided      Llamas    with    an    opportunity   to

discuss the issue in greater detail, but also indicates that, in

fact, the court was listening to and considering his arguments.

The record reflects that throughout the resentencing hearing,

the district court remained attuned to Llamas’ arguments and how

they related to the § 3553(a) factors and the offense at issue.

       Before resentencing Llamas, the district court specifically

indicated          that   it     had    once    again    “considered       all   of   the

sentencing factors set forth in Section 3553(a).” J.A. 650-51.

And    in     addition     to     all    of    the   above,      the    court    referred

specifically         to   its    detailed      explanation    in       Llamas’   previous

sentencing hearing and reincorporated the rationale set forth

therein for purposes of explaining the reasons for the sentence

it was imposing. The court also supplemented that analysis with


       4
       For example, the district court corrected Llamas’ factual
statement at one point, J.A. 626, discussed the Bernie Madoff
case as it relates to fraud sentences, J.A. 637-39 and 646, and
gave counsel the opportunity “to reargue the sentencing factors
[at resentencing] and argue for continuation of a the variance.”
(J.A. 627.)



                                               11
its     additional      consideration          of    §      3553(a)(7)(regarding

restitution), and found that this factor warranted an additional

downward variance. The record therefore reflects that where the

district    court     believed    some   new    consideration      should   affect

Llamas’ resentencing it stated those reasons on the record and

acted accordingly.

       Lastly, contrary to Llamas’ argument, the district court’s

earlier    explanation      of    the    reasons      for    its    sentence    was

sufficiently tethered to the § 3553(a) factors to permit review

of the reasonableness of the sentence. As we have frequently

indicated, a sentencing court need not “robotically tick through

§ 3553(a)’s every subsection,” United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006), but simply must “set forth enough

to    satisfy   the   appellate    court      that   [it]   has    considered   the

parties’ arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority,” United States v. Diosdado-

Star, 630 F.3d 359, 364 (4th Cir. 2011)(quoting United States v.

Rita, 551 U.S. 338, 356 (2007))(alterations in original).

       As a whole, we cannot say that the district court failed to

consider the § 3553(a) factors when sentencing Llamas, nor did

it fail to provide a sufficient explanation for the sentence it

imposed. Therefore we find no merit in Llamas’ argument that his

sentence was procedurally unreasonable.



                                         12
                                             B.

      Llamas also contends that even though his sentence is below

the advisory Guidelines range, it is still higher than necessary

to satisfy the § 3553(a) factors given the undisputed mitigating

circumstances of Llamas’ background and rehabilitation. In sum,

Llamas   asserts          the     district   court    failed      to    explain      why   it

“believed      it     was    ‘necessary’     to    impose     a     126-month       sentence

. . . . ”

      In reviewing substantive reasonableness, we “examine[] the

totality    of      the     circumstances     to     see    whether      the   sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).” United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). We

“must defer to the trial court and can reverse a sentence only

if it is unreasonable, even if the sentence would not have been

the   choice     of    the      appellate    court.”       Heath,      559   F.3d    at    266

(citations and emphasis omitted). Importantly, we recently held

that a below-Guidelines sentence is entitled to a presumption of

reasonableness against a defendant’s claim that the length of

the sentence is too long. United States v. Susi, No. 11-4041,

slip op. at 19 (4th Cir. March 21, 2012). While that presumption

can be rebutted, we readily conclude from the record that Llamas

has   not   done      so     in    this   case.    Llamas’     arguments       on    appeal

reiterate the positions he took during the sentencing hearing.

                                             13
The   district    court   appropriately      exercised   its   discretion    in

determining      the   extent   to   which   those   positions   supported   a

variance. “That the court did not agree with [Llamas] as to the

value, or relative weight, to give each factor and thus did not

sentence [him] to as low a sentence as he desired does not in

itself demonstrate an abuse of the court’s discretion.” Id. at

20. Accordingly, we hold that Llamas’ sentence is substantively

reasonable.



                                      III.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                    AFFIRMED




                                       14
