                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4298


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNI MARTINEZ GOMEZ, a/k/a Joni Omar Martinez, a/k/a Elvis
Alexis Guzman,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      James K. Bredar, District Judge.
(1:14-cr-00335-JKB-1)


Submitted:   January 21, 2016             Decided:   February 4, 2016


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard C. Bittner, LAW OFFICE OF RICHARD C. BITTNER, Glen
Burnie, Maryland, for Appellant.      Rod J. Rosenstein, United
States Attorney, Paul E. Budlow, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Johnni        Martinez         Gomez     pled    guilty,         pursuant       to     a    plea

agreement,       to      one    count     of    reentry    of      a    deported          felon,    in

violation of 8 U.S.C. § 1326 (2012).                            Gomez asserts that his

sentence       should          be    vacated      because:              (1)         the     16-level

enhancement to his offense level, pursuant to U.S. Sentencing

Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2014), violated his due

process    rights;         and      (2)   the    41-month       sentence        was        excessive

“given     the      totality         of   [his]       circumstances,           conduct,          prior

offense, and the vision of 18 U.S.C. § 3553 [2012].”                                      Finding no

error, we affirm.

      We   review         any       criminal    sentence,       “whether            inside,       just

outside,       or     significantly          outside    the     Guidelines           range,”       for

reasonableness,            “under         a      deferential            abuse-of-discretion

standard.”          United States v. King, 673 F.3d 274, 283 (4th Cir.

2012); see Gall v. United States, 552 U.S. 38, 51 (2007).                                          The

first    step       in    this       review     requires      us       to    ensure        that    the

district court committed no significant procedural error.                                        King,

673     F.3d     at      283.         Procedural       errors      include           “failing       to

calculate        (or     improperly          calculating)       the         Guidelines        range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a)        factors,           selecting     a     sentence            based     on     clearly

erroneous facts, or failing to adequately explain the chosen



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sentence—including             an    explanation         for       any    deviation       from    the

Guidelines range.”             Gall, 552 U.S. at 51.

      “[I]f       a    party       repeats      on     appeal      a     claim    of     procedural

sentencing error . . . [that] it has made before the district

court,   we       review      for     abuse      of    discretion”          and    will      reverse

unless we can conclude “that the error was harmless.”                                          United

States   v.       Lynn,       592    F.3d       572,    576     (4th       Cir.    2010).         For

instance,         if    “an       aggrieved          party     sufficiently            alerts     the

district court of its responsibility to render an individualized

explanation” by drawing arguments from § 3553 “for a sentence

different         than     the        one       ultimately          imposed,”          the      party

sufficiently “preserves its claim.”                           Id. at 578.              However, we

review   unpreserved              non-structural         sentencing         errors       for    plain

error.      Id. at 576-77.

      If,        and   only         if,    we    find        the       sentence     procedurally

reasonable can we consider the substantive reasonableness of the

sentence imposed.                 See United States v. Carter, 564 F.3d 325,

328 (4th Cir. 2009).                      We presume on appeal that a sentence

within      or    below       a     properly      calculated             Guidelines       range    is

substantively reasonable.                   United States v. Susi, 674 F.3d 278,

289 (4th Cir. 2012).

      According to Gomez, the district court violated his due

process rights when it considered his prior assault conviction

and   “automatically              enhance[d]         [his]    sentence[]          when    there    is

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absolutely no evidence that [Gomez’s] conduct in this case was

anything more than a re-entry without permission or inspection,

and that his prior conduct was isolated.”                                We reject Gomez’s

argument that the district court erred when it applied the 16-

level violent offender enhancement to his base offense level.

     First, Gomez agreed in his plea agreement and in open court

while     under          oath       that    he    was        subject     to    the      16-level

enhancement.          Because it is undisputed that Gomez knowingly and

voluntarily entered his guilty plea, we enforce the stipulations

in   Gomez’s         plea       agreement         and     reject       his    offense      level

challenge.          See United States v. Yooho Weon, 722 F.3d 583, 589-

90   (4th       Cir.        2013)          (holding      that        absent     “demonstrated

exceptional         circumstances[,]”             a     defendant       who    pleads      guilty

pursuant       to    a    plea      agreement         where    the    defendant      agrees    to

specific stipulations cannot challenge the application of those

same stipulations on appeal).

     We     nonetheless             discern      no    due    process    violation        by   the

district court.             Section 2L1.2(b)(1)(A)(ii) provides for a 16–

level    increase         if    a    defendant        illegally       reenters      the    United

States after being convicted of a crime of violence, and the

Guidelines          commentary         lists      various       crimes       that    constitute

crimes    of    violence,           including         “aggravated      assault”      for    which

Gomez was convicted.                 See USSG § 2L1.2 cmt. n.1(B)(iii) (2014).

Notably, Gomez does not assert that his prior Texas aggravated

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assault     conviction         is     not     a     crime      of        violence     under

2L1.2(b)(1)(A)(ii).          And as is evidenced by the fact that Gomez

cites no authority for his due process argument, his argument is

meritless.         Cf. Almendarez-Torres v. United States, 523 U.S.

224,    239-44     (1998)    (reiterating         that   the     Due      Process    Clause

“protects     the       accused     against       conviction     except      upon     proof

beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged[,]” while recognizing that

“recidivism does not relate to the commission of the offense,

but goes to the punishment only”) (emphasis added and internal

quotation marks and citation omitted).                   Accordingly, Gomez’s 41-

month sentence is procedurally reasonable.

       Having discerned no procedural error in Gomez’s sentence,

this court presumes on appeal that the sentence is reasonable.

Susi, 674 F.3d at 289.              Gomez nonetheless attempts to rebut this

presumption        by    arguing     that     his    sentence        is    greater    than

necessary     to    achieve       § 3553(a)’s        objectives.           According    to

Gomez, the district court abused its discretion when it imposed

the    41-month     sentence      because:         (1)   Gomez      is    being   punished

twice for the 2005 aggravated assault; (2) Gomez’s reentry was

not related to unlawful activity and Gomez committed no violent

acts upon his return; (3) Gomez returned to the United States to

work and help his son and ailing mother; and (4) Gomez does not

need a harsh sentence to understand the gravity of his actions.

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     Gomez’s        arguments         amount       to    little     more        than   his

disagreement    with        the       district     court’s      rationale        for   his

sentence.     Moreover, the district court explicitly stated that

it considered each § 3553(a) factor before it imposed Gomez’s

sentence, and it also expressly indicated the role it believed

each factor played in fashioning an appropriate sentence.                              The

district court clearly found it important that Gomez’s criminal

history involved a violent criminal act, and it believed that a

41–month    sentence    would         sufficiently      address     the    demonstrated

needs for deterrence and a respect for the law.                           See 18 U.S.C.

§ 3553(a)(1), (2)(A)-(B).                  The district court nonetheless also

took into consideration the fact that Gomez initially faced a

longer    sentence    under       a    Guidelines       range   that,     although     the

district    court     found       was      correctly     calculated,       it    believed

overrepresented Gomez’s criminal history.                    Even if Gomez or this

court believed that a different sentence would be appropriate,

we   must   defer     to    the       district      court’s     decision        that   the

§ 3553(a) factors, on a whole, justified the sentence imposed.

See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).

     Because    we    discern         no    procedural     error    in    the    district

court’s imposition of a 41-month downward variant sentence, and

because     Gomez     has     failed          to   rebut      the    presumption        of

reasonableness this court affords his below-Guidelines sentence,

we affirm the district court’s judgment.                     We dispense with oral

                                              6
argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                       AFFIRMED




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