                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4575


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HECTOR CERON-GARCIA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00448-REP-1)


Submitted:   January 24, 2011             Decided:   February 18, 2011


Before GREGORY, SHEDD, and DAVIS, 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Affirmed by unpublished per curiam opinion.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, Benjamin L. Hatch, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Hector   Arturo       Ceron-Garcia            appeals        the        within-

Guidelines 108-month sentence imposed following his guilty plea

to possession with intent to distribute 500 grams or more of

methamphetamine,       in    violation        of       21    U.S.C.        § 841(a)(1),

(b)(1)(A)(viii) (2006).           On appeal, Ceron-Garcia contends that

the district court imposed a substantively unreasonable sentence

because it used the offense level determined by the weight of

actual    methamphetamine        rather    than    the      entire     weight         of   the

mixture.      Finding no reversible error, we affirm.

              We review a sentence imposed by a district court under

a   deferential     abuse   of    discretion       standard.          Gall       v.   United

States, 552 U.S. 38, 45 (2007).               First, we review the sentence

for    significant     procedural     error,       examining         the     record        for

miscalculation of the Guidelines range, the treatment of the

Guidelines     as   mandatory,      failure       to   consider       the     §       3553(a)

factors, the selection of a sentence based on clearly erroneous

facts, and failure to adequately explain the chosen sentence and

any deviation from the Guidelines.                Gall, 552 U.S. at 51.                If we

find     no   significant    procedural       error,         we   next       assess        the

substantive reasonableness of the sentence.                       United States v.

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010).                         If the sentence

imposed is within the appropriate Guidelines range, we consider

it presumptively reasonable.              United States v. Mendoza-Mendoza,

                                          2
597 F.3d 212, 216 (4th Cir. 2010).                            The presumption may be

rebutted by a showing “that the sentence is unreasonable when

measured    against      the     § 3553(a)         factors.”             United    States    v.

Montes-Pineda,      445    F.3d     375,      379     (4th      Cir.      2006)     (internal

quotation marks omitted).

            Ceron-Garcia          does        not     challenge           the      procedural

reasonableness      of     his    sentence;         he       merely      argues    that     the

district court erred when it declined to vary downward because

the   sentencing      disparity         for       actual      methamphetamine         and     a

methamphetamine       mixture      is    not       based      on    empirical       data    and

national experience, as he argues is required by Kimbrough v.

United States, 552 U.S. 85, 109-10 (2007).                          Kimbrough, however,

did   not     require      an     empirical          basis         for     all     Sentencing

Guidelines.     United States v. Mondragon-Santiago, 564 F.3d 357,

366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also

United States v. Talamantes, 620 F.3d 901, 901 (8th Cir. 2010)

(per curiam).         While “district courts certainly may disagree

with the Guidelines for policy reasons and may adjust a sentence

accordingly[,] . . . if they do not, [appellate courts] will not

second-guess     their      decisions         under      a    more       lenient    standard

simply    because   the     particular            Guideline        is    not     empirically-

based.”     Mondragon-Santiago, 564 F.3d at 367.

            Thus,     we    presume      reasonable           Ceron-Garcia’s         within-

Guidelines sentence.             Because Ceron-Garcia fails to rebut the

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presumption, we hold that the district court did not abuse its

discretion     in    sentencing   him       to   108    months’     imprisonment.

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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