                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4214


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GUSTAVO HERNANDEZ-LUNA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:10-cr-00313-H-1)


Submitted:   November 8, 2011             Decided:   December 14, 2011


Before NIEMEYER, KING, and DIAZ, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

            Gustavo      Hernandez-Luna         appeals      from      a     sixty-month

sentence imposed upon him pursuant to his guilty plea to illegal

reentry by a convicted felon.                 The presentence report (“PSR”)

recommended a base offense level of eight and a sixteen-level

increase    because     Hernandez-Luna         previously       had    been       deported

after sustaining a conviction for a crime of violence, namely

aggravated    assault.          See    U.S.     Sentencing       Guidelines            Manual

§ 2L1.2 (2010) (“Section 2L1.2”).                  Hernandez-Luna moved for a

variance     sentence     and    a    sentence     at     the    low       end    of     the

Guidelines    range     (fifty-seven       months),       arguing          that   Section

2L1.2    unreasonably     increased       his    advisory        range,       failed      to

reflect the statutory sentencing factors, and did not exemplify

the     Sentencing     Commission’s      exercise       of      its    characteristic

institutional role.            See Kimbrough v. United States, 552 U.S.

85, 109-10 (2007) (holding that district courts are entitled to

reject application of certain Guidelines based on disagreement

with underlying policy).              The district court denied Hernandez-

Luna’s     request,     reasoning      that,    given     the     totality         of    his

criminal     record,      the        enhancement       was      not        unreasonable.

Hernandez-Luna        argues    on    appeal    that    his      sentence         is    both

procedurally and substantively unreasonable.                    We affirm.




                                          2
              We review a sentence imposed by the district court,

“whether      inside,    just    outside,         or     significantly         outside    the

Guidelines         range,”    under    a   “deferential            abuse-of-discretion

standard.”         Gall v. United States, 552 U.S. 38, 41 (2007).                        This

review entails appellate consideration of both the procedural

and substantive reasonableness of the sentence.                         Id. at 51.

              In    determining       whether      a     sentence       is     procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s Guidelines range.                       Id. at 49, 51.         We

then consider whether the district court treated the Guidelines

as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors

and any arguments presented by the parties, selected a sentence

based    on    “clearly       erroneous       facts,”       or    failed        to   explain

sufficiently the selected sentence.                    Id. at 50-51; United States

v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                          “When rendering a

sentence,      the     district       court       must     make    an        individualized

assessment      based    on    the    facts       presented,”          United    States   v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation

marks and emphasis omitted), and must “adequately explain the

chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing,”                            Gall, 552 U.S. at

50.     “When imposing a sentence within the Guidelines, however,

the   [district       court’s]    explanation          need      not    be    elaborate    or

lengthy because [G]uidelines sentences themselves are in many

                                              3
ways tailored to the individual and reflect approximately two

decades      of    close        attention          to     federal      sentencing      policy.”

United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010)

(internal quotation marks omitted).

              If    the    sentence         is      free     of    significant        procedural

error, we review the substantive reasonableness of the sentence,

“tak[ing]      into       account        the       totality       of   the    circumstances.”

Gall, 552 U.S. at 51.               If the sentence is within the appropriate

Guidelines        range,      we    apply      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.”                         United States v. Montes-Pineda,

445   F.3d    375,      379     (4th     Cir.       2006)    (internal       quotation          marks

omitted).

              Hernandez-Luna               argues           that       his        sentence        is

procedurally unreasonable because the district court failed to

address      his   argument         that       Section      2L1.2      was   an    unreasonable

enhancement        in     and      of    itself,         without       application         to    his

specific      circumstances.                   Hernandez-Luna          contends       that       the

district court only addressed whether the application of the

Guidelines         was        reasonable             based         upon      his      individual

characteristics          and       did   not       address    his      actual      claim    as     to

whether the Guideline was generally inappropriate as a policy

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matter.            “Where        the     defendant           or     prosecutor         presents

nonfrivolous reasons for imposing a different sentence than that

set forth in the advisory Guidelines, a district [court] should

address the party’s arguments and explain why [it] has rejected

those arguments.”           Carter, 564 F.3d at 328.

              We        conclude        that     the       district        court       properly

considered        Hernandez-Luna’s             arguments      in    the    context        of    his

individual        characteristics.              The    court       read    Hernandez-Luna’s

memorandum        and    heard     additional         oral    argument.           There    is    no

indication        that     the   court       misunderstood         the     policy     arguments

being made or its discretion to impose a variance sentence on

policy grounds.            In fact, the district court stated that, had

Hernandez-Luna’s prior conviction been an aberration, the court

might      have    been     more       inclined       to   agree        with   him    that      the

Guidelines         range     was       too     harsh.         See        United      States      v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (noting

that       district       court’s        consideration             of     policy      decisions

underlying the Guidelines is part of the § 3553(a) analysis). 1


       1
        Hernandez-Luna argues without support on appeal that
“[t]he sixteen-level enhancement under § 2L1.2 is either a
reasonable increase or it is not. . . . The reasonableness . . .
does not depend upon the defendant to whom it is being applied.”
Appellant’s Br. at 15. However, the district court is required
to impose an individualized sentence based on individualized
reasoning.    Thus, the district court is free to find the
Guideline appropriate is certain cases and not in others.    See
United States v. Mitchell, 624 F.3d 1023, 1028 (9th Cir. 2010)
(Continued)
                                                 5
Accordingly,    the    court,    as     required,    provided       individualized

reasoning for Hernandez-Luna’s sentence and thus there was no

procedural error.

             Hernandez-Luna      also     argues     that     his     sentence      is

substantively unreasonable.           Specifically, he contends that, as

a result of the application of Section 2L1.2, his offense level

and resulting Guidelines range overrepresented the seriousness

of his criminal conduct and did not comport with § 3553(a)’s

overall goal that a sentence not be excessive.                 He also contends

that   the   Guideline    is    arbitrary     and    was     not    adopted      after

careful consideration and research.

             Hernandez-Luna      fails       to     overcome        the       appellate

presumption     that    his    sixty-month        sentence     is    substantively

reasonable.     He has not demonstrated on appeal that the district

court erred in its application of Section 2L1.2 and does not

direct this court to any authority for the proposition that a

proper   application      of     this    Guideline      produces          a   sentence

unintended by Congress.          Further, his policy argument, even if

accepted in other cases, would not require the district court to

impose   a   sentence    below    the     Guidelines    range.            See    United




(noting that sentencing judge is empowered to disagree with
particular Guidelines “when the circumstances in an individual
case warrant”), cert. denied, 131 S. Ct. 1542 (2011).



                                         6
States v. Wilken, 498 F.3d 1160, 1172 (10th Cir. 2007); see also

United          States    v.    Lopez,        650    F.3d    952,       967    (3d    Cir.       2011)

(rejecting similar Section 2L1.2 challenge and noting that, even

where       policy       arguments       have       been    found      valid,     rejection        of

Guidelines range is not required when court does not, in fact,

have        a    disagreement          with    the       Guideline       at    issue);          United

States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (holding

that        Section      2L1.2     was      properly        adopted      pursuant          to    usual

procedures         and    rejecting         policy       challenge       where       the    district

court        arrived      at     the    sentence         after    application          of       § 3553

factors).          Hernandez-Luna’s sentence was near the bottom of his

presumptively            reasonable         Guidelines       range. 2          Accordingly,         we

conclude          that,        under     the        totality     of      the     circumstances,

Hernandez-Luna            fails        to      establish         that     his        sentence       is

substantively unreasonable.

                  Because      Hernandez-Luna            fails    to     establish         that    the

district court abused its discretion in imposing sentence, we

affirm the district court’s judgment.                              We dispense with oral

argument because the facts and legal contentions are adequately




        2
       Despite Hernandez-Luna’s contention, a Guidelines range
calculated   under  Section   2L1.2   is   still   presumptively
reasonable. See Mondragon-Santiago, 564 F.3d at 366.



                                                     7
presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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