                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4201


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

THEOFANIS MAVROUDIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:13-cr-00034-GMG-JES-1)


Submitted:   September 24, 2014           Decided:   October 9, 2014


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Nicholas   J.  Compton,   Assistant   Federal  Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Jarod J. Douglas, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Theofanis Mavroudis pled guilty to failure to register

as a sex offender, in violation of 18 U.S.C. § 2250(a) (2012).

He was sentenced to sixty-three months’ imprisonment, to run

consecutively to any future state or federal sentence, followed

by   a    lifetime      of    supervised        release.          Mavroudis     appeals,

challenging       his   sentence.        For     the    reasons     that    follow,     we

affirm.

            We review a sentence for reasonableness, applying a

“deferential       abuse-of-discretion           standard.”          Gall     v.    United

States, 552 U.S. 38, 52 (2007).                  We first consider whether the

sentencing     court         committed      “significant          procedural       error,”

including     improper         calculation        of    the       Guidelines        range,

insufficient      consideration        of   the    18   U.S.C.      § 3553(a)       (2012)

factors,    and    inadequate      explanation         of   the    sentence        imposed.

Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th

Cir. 2010).         In assessing Guidelines calculations, we review

factual findings for clear error, legal conclusions de novo, and

unpreserved       arguments      for     plain    error.           United     States    v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012).

            If we find the sentence procedurally reasonable, we

also consider its substantive reasonableness under the totality

of the circumstances.             Lynn, 592 F.3d at 578.                   The sentence

imposed must be “sufficient, but not greater than necessary, to

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comply with the purposes” of sentencing.                      18 U.S.C. § 3553(a).

We    presume    on    appeal    that    a       within-Guidelines          sentence    is

substantively reasonable, and the defendant bears the burden to

“rebut the presumption by demonstrating 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).

             Mavroudis      raises     two       challenges     to    his    Guidelines

calculations.         He first asserts that the district court erred in

imposing an eight-level upward adjustment to his base offense

level for commission of a sex offense against a minor while in

failure     to   register     status.        See    U.S.     Sentencing       Guidelines

Manual (“USSG”) § 2A3.5(b)(1)(C) (2012).                      For the purposes of

this Guideline, “sex offense” is defined, in relevant part, as

“a criminal offense that has an element involving a sexual act

or sexual contact with another.”                   42 U.S.C § 16911(5) (2012);

see USSG § 2A3.5 cmt. n.1.              “Minor” is defined to include “an

individual who had not attained the age of 18 years.”                                  USSG

§ 2A3.5 cmt. n.1.          The Guideline does not require conviction of

such an offense, but only its commission, to qualify a defendant

for   the   enhancement.        United       States    v.     Lott,   750     F.3d     214,

220-21 (2d Cir. 2014).

             Mavroudis also asserts that the district court erred

in imposing a two-level upward adjustment for vulnerable victim.

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The    Guidelines        provide    for    a    two-level         enhancement    when     the

defendant     “knew       or     should   have      known    that     a    victim    of   the

offense      was    a    vulnerable       victim.”          USSG    § 3A1.1(b)(1).         A

“vulnerable victim” is defined as “a victim of the offense of

conviction         and     any     conduct      for       which     the     defendant      is

accountable under [USSG] § 1B1.3 (Relevant Conduct) . . . who is

unusually vulnerable due to age, physical or mental condition,

or who is otherwise particularly susceptible to the criminal

conduct.”         USSG § 3A1.1 cmt. n.2.

              We find no abuse of discretion in the district court’s

imposition of these enhancements.                       The testimony at sentencing

amply supported the court’s findings that Mavroudis committed

the West Virginia offense of sexual abuse in the third degree,

see W. Va. Code §§ 61-8B-1(6), 61-8B-9(a) (2013), and that the

victim of this offense qualifies as a vulnerable victim under

USSG     § 3A1.1.          Moreover,       we      find     unpersuasive        Mavroudis’

argument that the vulnerable victim enhancement could not apply

to    his   failure       to   register    offense.          See    USSG    § 1B1.3(a)(1)

(defining “relevant conduct” to include “all acts and omissions

committed . . . by the defendant . . . that occurred during the

commission of the offense of conviction.”); cf. United States v.

Myers,      598    F.3d    474     (8th   Cir.      2010)    (finding       prior     sexual

assault      that       predated    failure        to    register     offense       was   not

relevant conduct).

                                               4
              Mavroudis       next    asserts        that    his    lifetime     term   of

supervised      release       is      both    procedurally          and    substantively

unreasonable,       because        the    court      failed    to    provide     adequate

reasoning     to   justify      the      sentence,     and    it    is    unsupported    by

facts in the record.               However, the district court provided a

clear, if brief, explanation of its reasons for imposing the

term—specifically focusing on the need to protect the community

and   other    vulnerable       victims,       due    to    Mavroudis’       demonstrated

recidivism, and to provide needed treatment.                         We conclude these

reasons adequately support the court’s decision to impose such a

sentence.      Moreover, insofar as Mavroudis seeks to challenge the

substantive reasonableness of his sentence of imprisonment, he

fails to rebut the presumption of reasonableness accorded this

sentence.      See Montes-Pineda, 445 F.3d at 379.

              Finally,    Mavroudis          asserts    that       the    district   court

lacked discretion to order that his sentence run consecutively

to any future state or federal sentence.                      Mavroudis specifically

relies on United States v. Smith, 472 F.3d 222, 226 (4th Cir.

2006) (holding, based upon the language of 18 U.S.C. § 3584(a)

(2012),   that      a    district        court     “cannot     impose      its   sentence

consecutively to a sentence that does not yet exist”).                             However,

the   Supreme      Court’s      subsequent         ruling     in    Setser    v.     United

States,   132      S.   Ct.    1463      (2012),     implicitly      overruled       Smith.

Therefore, the district court did not abuse its discretion in

                                              5
running   the    sentence     consecutively    to   Mavroudis’    unimposed

sentences.

           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

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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