                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4453


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISAIAS SARABIA-SANTIAGO, a/k/a Adriano Primo,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:10-cr-00183-1)


Submitted:   September 26, 2011           Decided:   October 27, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.    R.
Booth Goodwin II, United States Attorney, Erik S. Goes,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In January 2011, Isaias Sarabia-Santiago pled guilty

to illegal reentry by a previously deported aggravated felon, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2006).                          The district

court granted Sarabia-Santiago’s request for a downward variance

from his advisory Guidelines range of forty-one to fifty-one

months’    imprisonment,         and     sentenced       Sarabia-Santiago           to     a

thirty-month term of imprisonment.                    In support of its variance

decision    and     to    explain      the    extent     of    that    variance,         the

district court noted that: (1) Sarabia-Santiago committed the

offense underlying his prior aggravated felony conviction at a

relatively       young    age    (19),    he     received      a    minimal    term       of

imprisonment for that offense, and he had otherwise abided by

the law; and (2) Sarabia-Santiago would not receive credit for

the thirty-six days he served in administrative custody prior to

commencement of his federal case.                This appeal timely followed.

            On       appeal,         Sarabia-Santiago               challenges           the

reasonableness       of    his    variance       sentence.           First,    Sarabia-

Santiago   maintains       the   court       should    not    have    relied   on     U.S.

Sentencing Guidelines Manual (“USSG”) § 2L1.2 (2010) to set the

offense    level    because      this    guideline      —     and    particularly        the

graduated increase in offense levels — has no “empirical support

and does not reflect the Sentencing Commission’s expert role in

the   federal      sentencing       system.”          (Appellant’s       Br.     at      9).

                                             2
Sarabia-Santiago           next   asserts     the    district         court       abused     its

discretion in denying his request for a variance based on the

unwarranted sentencing disparities that result from the selected

application of USSG § 5K3.1, p.s., the so-called “fast-track”

disposition        program.        Sarabia-Santiago            raised       both    of   these

arguments     in     the    district    court.           For    the    reasons      discussed

below, we reject these contentions and affirm.

              This    court       reviews    a    sentence          for    reasonableness,

applying      an   abuse     of    discretion       standard.              Gall    v.    United

States, 552 U.S. 38, 46, 51 (2007); see also United States v.

Shealey, 641 F.3d 627, 634 (4th Cir.), petition for cert. filed,

__ U.S.L.W. __ (U.S. July 21, 2011) (No. 11-5496).                                This review

requires      appellate      consideration          of    both      the    procedural        and

substantive reasonableness of a sentence.                       Gall, 552 U.S. at 51.

              In determining procedural reasonableness, this court

considers     whether       the    district      court     properly         calculated       the

defendant’s advisory Guidelines range, considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

Id.   “Regardless of whether the district court imposes an above,

below,   or    within-Guidelines            sentence,          it   must     place      on   the

record   an    individualized          assessment         based       on   the     particular

facts of the case before it.”               United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).                                  An

                                             3
extensive explanation is not required as long as the appellate

court is satisfied “‘that [the district court] has considered

the parties’ arguments and has a reasoned basis for exercising

[its] own legal decisionmaking authority.’”                    United States v.

Engle, 592 F.3d 495, 500 (4th Cir.) (alterations in original)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)), cert.

denied, 131 S. Ct. 165 (2010).               Upon concluding there is “no

significant procedural error,” we next assess the substantive

reasonableness       of    the   sentence,     taking    “‘into    account       the

totality   of   the       circumstances,     including   the     extent    of    any

variance from the Guidelines range.’”             United States v. Morace,

594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51),

cert. denied, 131 S. Ct. 307 (2010).

           Sarabia-Santiago         first     contends     his     sentence       is

unreasonable because the sixteen-level enhancement authorized by

USSG § 2L1.2(b)(1)(A) is an arbitrary guideline, enacted without

deliberation    or    empirical     justification,       that    should    not    be

afforded deference.         This argument amounts to a policy attack on

the   applicable     enhancement    provision,     and    we    conclude    it    is

without merit. 1      Accord United States v. Mondragon–Santiago, 564


      1
       We have previously rejected this very argument, albeit in
unpublished, non-binding decisions.       See United States v.
Palacios-Herrera, 403 F. App’x 825, 827 (4th Cir. 2010)
(unpublished)   (rejecting    defendant’s    challenge  to   the
reasonableness of his sentence “because the guideline under
(Continued)
                                       4
F.3d 357, 365–67 (5th Cir.) (explaining that, although “district

courts certainly may disagree with the Guidelines for policy

reasons and may adjust a sentence accordingly[,] . . . if they

do not, we will not second-guess their decisions under a more

lenient standard simply because the particular Guideline is not

empirically-based”), cert. denied, 130 S. Ct. 192 (2009).

           Sarabia-Santiago       next       assigns    error      to   the     district

court’s   decision   not    to    vary    downward          on   the    basis     of   the

sentencing disparities that result from selected application of

the fast-track program. 2         While Sarabia-Santiago concedes his

argument is contrary to this court’s decision in United States

v.   Perez-Pena,   453     F.3d   236    (4th     Cir.       2006),     he    questions

whether   the   Supreme    Court’s      decision       in    Kimbrough       v.   United



which he was sentenced is not based on empirical study conducted
by the Sentencing Commission”), cert. denied, 131 S. Ct. 2918
(2011); United States v. Jimenez-Hernandez, 311 F. App’x 578,
579 (4th Cir. 2008) (unpublished) (same); see also United States
v. Garcia-Aguilera, No. 10-5316, 2011 WL 3268202 (4th Cir. Aug.
1, 2011) (unpublished) (holding presumption of reasonableness
not overcome simply because district court failed to reject
policy of guideline); United States v. Mendoza-Mendoza, 413 F.
App’x 600, 602 (4th Cir.) (unpublished) (same), cert. denied,
131 S. Ct. 3078 (2011).
      2
       “‘Fast-tracking’ refers to a procedure that originated in
states along the United States-Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.”   United States v. Perez-Pena, 453 F.3d 236, 238
(4th Cir. 2006). In conformity with that practice, prosecutors
seek to obtain pre-indictment pleas by offering to move for a
downward departure under USSG § 5K3.1, p.s.



                                         5
States, 552 U.S. 85, 109-10 (2007), effectively overruled Perez-

Pena.

               In Perez-Pena, this court held that the disparities

resulting       from      the   limited    application      of     the      fast-track

program, USSG § 5K3.1, p.s., “are ‘warranted’ as a matter of

law,”     as   “the    disparity    is    due   not   to   the    location     of   the

arrest, but rather to the fact that the Government offered only

one of the defendants a plea bargain.”                  Perez-Pena, 453 F.3d at

242-43.        Although Sarabia-Santiago is correct that this court

has   not      revisited    Perez-Pena     since      Kimbrough,       Perez-Pena    is

still controlling in this Circuit. 3

               In   the    alternative,        Sarabia-Santiago        contends     the

district       court   erroneously       concluded     there     was   no    disparity

between Sarabia-Santiago’s sentencing range and that of those

defendants who receive a fast-track disposition.                       Specifically,

Sarabia-Santiago takes issue with the district court’s reliance

on the fact that Sarabia-Santiago did not agree to the required

waiver provisions, arguing those waivers are a quid pro quo for

the Government’s offer of a downward departure, which was not


      3
       Moreover, we note that the record clearly establishes that
the district court accepted defense counsel’s contention that it
had the authority to vary on this basis. Thus, although raised
in Sarabia-Santiago’s appellate brief, whether Kimbrough permits
a sentencing court to vary on this basis is not implicated in
this case.



                                           6
made     in    this       case       because       the     fast-track         program       is     not

available in the Southern District of West Virginia.

               This argument attempts to capitalize on the causality

dilemma inherent in those cases where a fast-track disposition

is not authorized.                   The fact remains, however, that Sarabia-

Santiago      did     not      execute       those       waivers    that      would    have       been

necessary       for       a        fast-track      disposition.               Accordingly,         we

conclude      the     district            court    did    not     err    in    finding      this    a

significant         distinction             between        Sarabia-Santiago           and        those

defendants who receive the benefit of USSG § 5K3.1, p.s.                                           See

id.    at     243    (explaining            that     to    compare       “the    sentences          of

defendants who helped the Government to those of defendants who

did not — regardless of why some were in a position to help and

others were not — is comparing apples and oranges”).

               Finally,            Sarabia-Santiago            asserts    that   his     variance

sentence is substantively unreasonable.                             It is axiomatic that,

when reviewing the substantive reasonableness of the district

court’s sentence, this court must assess the degree to which the

district court varied from the defendant’s advisory Guidelines

range.        Gall, 552 U.S. at 51.                       “The fact that the appellate

court might reasonably have concluded that a different sentence

was    appropriate            is    insufficient          to    justify       reversal      of     the

district       court.”              Id.      Here,        the    district      court     properly

calculated          the       advisory        Guidelines          range,       considered          the

                                                   7
§ 3553(a) factors, and explained the basis for its decision to

vary    downward     from       the   Guidelines    range     by    four    levels.

Accordingly,        we       hold       Sarabia-Santiago’s          sentence      is

substantively reasonable.

              For   the    foregoing     reasons,   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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