                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4852


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

JERRY LEE HAIRSTON, JR.,

                      Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00360-WO-1)


Submitted:   April 26, 2012                 Decided:   April 30, 2012


Before GREGORY, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jerry   Lee    Hairston,     Jr.,    appeals   from     his    67-month

sentence entered pursuant to his guilty plea to possession of a

firearm by a convicted felon.               After calculating a Sentencing

Guidelines range of 84-105 months, the district court granted

the   Government’s   motion      and   Hairston’s      request    for     a   twenty

percent substantial assistance departure from the low end of the

Guidelines range.        Hairston now asserts for the first time that

the district court erred in failing to consider his mental and

emotional issues and in imposing a longer sentence than Hairston

would have received in a district with a fast-track program.                        We

affirm.

           In   determining      the    procedural      reasonableness         of    a

sentence, we must assess inter alia whether the district court

failed to consider either the 18 U.S.C. § 3553(a) (2006) factors

or any arguments presented by the parties.                     United States v.

Montes-Pineda,     445    F.3d   375,    380    (4th    Cir.     2006).       Despite

Hairston’s allegations to the contrary, the record reveals that

the district court considered Hairston’s mental and emotional

state, recommending psychological testing and requiring mental

health treatment as a supervised release condition.                      The court

appropriately weighed these factors against Hairston’s criminal

history and related concerns, and as such, Hairston’s sentence

was procedurally reasonable.

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                 Next, Hairston alleges that his sentence was greater

than       necessary        when     compared       to    sentences         for       defendants

participating          in   fast-track        programs        and,   thus,     substantively

unreasonable. *             If     the   sentence        is    within    the      appropriate

Guidelines range, this court applies a presumption on appeal

that       the        sentence      is    reasonable.                United       States      v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                                      Such a

presumption is rebutted only by showing “that the sentence is

unreasonable             when        measured        against          the         §      3553(a)

factors.”         Montes–Pineda, 445 F.3d at 379.                    Here, after weighing

the appropriate factors, the court concluded that, despite the

fact   that       a    longer      sentence    could      be    justified,        a    departure

sentence starting from the low end of the Guidelines range was

       *
       The fast-track program allows federal prosecutors to offer
shorter sentences to defendants who plead guilty at an early
stage in the prosecution and agree to waive appeal and other
rights.   See U.S. Sentencing Guidelines Manual § 5K3.1 (2010).
Hairston asserts that the lack of a fast-track program is an
appropriate ground on which to vary from a Guidelines sentence.
Compare United States v. Jiminez-Perez, 659 F.3d 704, 710-11
(8th Cir. 2011) (disparity resulting from absence of fast-track
program not excluded as sentencing factor); with United
States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006) (holding
that the lack of a fast-track program is not a ground for a
downward departure). Because Hairston did not raise this issue
below, it is reviewed for plain error.      See United States v.
Strickland, 245 F.3d 368, 379 (4th Cir. 2001). Assuming without
deciding that such a factor is an appropriate basis for a
variance sentence, the court did not state that it lacked the
authority to vary, and the court was not required to vary. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.
2009). As such, Hairston cannot show plain error.



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appropriate.   Given our review of the record as a whole, we hold

that Hairston has failed to overcome the appellate presumption

that that his Guidelines sentence was reasonable.

           Accordingly,    we   affirm   Hairston’s    sentence.      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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