                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4022


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JUAN   CARLOS   VELASQUEZ-PENUELAS,      a/k/a   Diego   Martinez
Penuelas,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (4:11-cr-00080-F-1)


Submitted:   August 31, 2012             Decided:   September 11, 2012


Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Without the benefit of a written plea agreement, Juan

Carlos Velasquez-Penuelas, a native and citizen of Mexico, pled

guilty to illegally reentering the United States following his

removal    as    an     aggravated       felon,       in    violation           of     8    U.S.C.

§ 1326(a),       (b)(2)     (2006).            The        district     court           sentenced

Velasquez-Penuelas          to    seventy         months’     imprisonment,                at   the

bottom of his advisory sentencing range.                       On appeal, Velasquez-

Penuelas challenges only the procedural reasonableness of his

sentence.        Specifically,          Velasquez-Penuelas           asserts           that     the

district court committed reversible procedural error by failing

to address his nonfrivolous arguments in favor of a downward

variance and failing to state, on the record, the reasons for

the sentence it imposed.            For the following reasons, we affirm.

               This court applies an abuse of discretion standard of

review as to this claim.            Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Diosdado–Star, 630 F.3d 359,

363     (4th    Cir.),      cert.       denied,      131     S.      Ct.        2946       (2011).

Reasonableness review requires appellate consideration of both

the   procedural      and    substantive           reasonableness          of    a     sentence.

Gall,     552    U.S.     at      51.         In     determining           the       procedural

reasonableness of a sentence, we consider whether the district

court    properly     calculated        the   defendant’s         advisory           Guidelines

range,    considered        the    18    U.S.C.       §    3553(a)     (2006)           factors,

                                              2
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).          The

explanation     must        be   sufficient             to        allow        for     “meaningful

appellate review,” id. (internal quotation marks omitted), such

that the appellate court need “not guess at the district court’s

rationale.”     Id. at 329.

           Velasquez-Penuelas           assigns              procedural          error     to     the

district court’s failure, despite his request for a downward

variant    sentence,        to   explain          its    reasons           for        selecting     a

seventy-month       sentence.       Because         Velasquez-Penuelas                   preserved

this issue by arguing for a sentence other than that which he

ultimately received, our review is for an abuse of discretion.

See United States v. Lynn, 592 F.3d 572, 583–84 (4th Cir. 2010).

           Based on our review of the sentencing transcript, we

agree that the district court’s explanation in this case was

insufficient,        thereby     rendering          Velasquez-Penuelas’                   sentence

procedurally unreasonable.              Thus, “we [must] reverse unless we

conclude   that      the    error   was       harmless.”                 Id.     at    576.       The

Government     may    establish        that       such        a    procedural           error     was

                                              3
harmless, and thus avoid remand, by showing “that the error did

not have a substantial and injurious effect or influence on the

result and we can say with fair assurance that the district

court’s   explicit    consideration        of     the   defendant’s      arguments

would not have affected the sentence imposed.”                 United States v.

Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation

marks and alterations omitted); see also Lynn, 592 F.3d at 585.

            Applying this standard to the facts of this case, we

conclude that the Government has satisfied its burden of showing

that the district court’s procedural error was harmless.                        We

first note that, as evidenced by the district court’s recitation

of Velasquez-Penuelas’ criminal history and history of illegally

entering the United States, the court was plainly familiar with

Velasquez-Penuelas’       background       as     it    was   relevant    to   the

§ 3553(a)    sentencing     factors.            Given   the   district     court’s

consideration        of       Velasquez-Penuelas’               history        and

characteristics, coupled with its decision to impose a sentence

at the bottom of his advisory Guidelines range, we agree with

the Government that any shortcoming in the court’s explanation

for the sentence imposed is harmless.                    See United States v.

Montes–Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (noting that

“[t]he context surrounding a district court’s explanation may

imbue it with enough content for us to evaluate both whether the



                                       4
court considered the § 3553(a) factors and whether it did so

properly”).

            The Government’s position is further supported by the

fact that the arguments Velasquez-Penuelas advanced in favor of

a     below-Guidelines        sentence           were     less           than    persuasive,

particularly when juxtaposed with the district court’s awareness

of    Velasquez-Penuelas’         chronic           recidivism            and    significant

criminal history.       See Boulware, 604 F.3d at 839–40 (explaining

that comparative weakness of a defendant’s arguments for a lower

sentence is one reason to decline to remand a case for further

explanation).        Finally, we have little doubt that the district

court    considered    defense        counsel’s         arguments          in    favor    of   a

downward   variance,     as     this    was       the    only        issue      contested      at

sentencing and it was vigorously contested.                                See id. at 839

(holding     that,    “even     if     the       district       court        erred   by     not

adequately     explaining       its     reasons         for     rejecting         Boulware’s

argument for a below-guidelines sentence, we are quite confident

that the district court undertook that analysis and considered

Boulware’s argument”).

            For these reasons, we conclude that, even though the

district     court     might     have        said       more        to    demonstrate       its

individualized       consideration       of      Velasquez-Penuelas’              arguments,

remand in this instance is unwarranted.                        Accordingly, we affirm

the   judgment   of    the     district       court.           We    dispense      with   oral

                                             5
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




                                  6
