                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4102


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JUAN JOSE DERAS-LOVO, a/k/a Richard Chacon Melgar, a/k/a
Juan Jose Lovo, a/k/a Jaun Jose Lovo, a/k/a Juan Jose
Lovo-Deras, a/k/a Juan Richard Chacon Melgar,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cr-00375-LMB-1)


Submitted:   September 20, 2013           Decided:   October 2, 2013


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Joshua Paulson,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney,   Alexandria,  Virginia,  for   Appellant.  Julia  K.
Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Juan Jose Deras-Lovo appeals from his conviction and

twenty-four month sentence, entered pursuant to his guilty plea

to    illegal      reentry    after     being     deported      subsequent          to   an

aggravated      felony.        On   appeal,     counsel        has   filed      a    brief

pursuant      to    Anders     v.     California,       386     U.S.    738     (1967),

concluding that there are no meritorious issues for appeal, but

questioning         whether     the      sentence       is      procedurally             and

substantively reasonable.             Neither Deras-Lovo nor the Government

has filed a brief.        We affirm.

              We review a sentence for reasonableness, applying an

abuse of discretion standard.              Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir. 2009).          In so doing, we first examine the sentence

for     “significant      procedural      error,”       including       “failing         to

calculate     (or    improperly       calculating)       the    Guidelines          range,

treating the Guidelines as mandatory, failing to consider the

[18   U.S.C.]      § 3553(a)    [(2006)]      factors,    selecting         a   sentence

based    on   clearly     erroneous      facts,    or    failing       to   adequately

explain the chosen sentence.”            Gall, 552 U.S. at 51.              We presume

on appeal that a sentence within a properly calculated advisory

Guidelines range is reasonable.                 United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551



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U.S. 338, 346-56 (2007) (upholding presumption of reasonableness

for within-Guidelines sentence).

               Counsel       first      questions          whether    the     district     court

provided an adequate explanation for Deras-Lovo’s sentence.                                   The

district       court        properly      calculated          the     advisory      Guidelines

range,    responded          to   the    parties’          arguments,    and       sufficiently

explained the chosen sentence.                   See United States v. Carter, 564

F.3d    325,    330        (4th   Cir.    2009)       (district       court     must   conduct

individualized assessment based on the particular facts of each

case, whether sentence is above, below, or within the Guidelines

range).        The court recognized Deras-Lovo’s main argument that

the United States was the only home he had ever known when

granting       him     a     departure         for     cultural       assimilation.            In

addition, the court explicitly noted that it declined to give a

variance       sentence       based      upon     Deras-Lovo’s          repeated       criminal

behavior       and    the     fact      that    he     paid    no     heed     to    his   prior

deportation.           We     conclude        that     there    was     no     error    in    the

district court’s explanation of the given sentence.

               If we find a sentence procedurally reasonable, we also

must    examine       the     substantive        reasonableness          of    the     sentence

given    the    totality          of   the     circumstances.           United       States    v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012).                            A sentencing court

must     “impose       a     sentence        sufficient,        but     not    greater       than

necessary,       to         comply       with        the     purposes        set     forth     in

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[§ 3553(a)(2)].”         18 U.S.C. § 3553(a).             Even if we would reach a

different sentencing result, this fact alone is insufficient to

justify    reversal      of     the    district     court.           United   States      v.

Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (internal quotation

marks omitted).

            Here,       counsel    avers    that        Deras-Lovo’s       sentence     was

substantively unreasonable because the illegal reentry guideline

is fundamentally flawed.                First, Deras-Lovo contends that his

sentence was unreasonably high due to his marijuana conviction

being used both to increase his offense level and to calculate

his criminal history score.                He also avers that his marijuana

conviction is not as serious as other crimes that would trigger

the twelve-level increase.                As such, Deras-Lovo concludes that

the twelve-level increase in his offense level resulted in a

Guidelines range which exceeded that which was necessary to do

justice in his case.

            However, we have held that use of a prior conviction

to   increase     both    the     offense       level    and    criminal      history     is

permissible       for   the   offense      of    reentry       by    an   alien   after    a

felony conviction.            United States v. Crawford, 18 F.3d 1173,

1179 (4th Cir. 1994) (holding it is not impermissible double

counting     to     treat       prior     felony        as     a     specific      offense

characteristic          under      U.S.     Sentencing              Guidelines      Manual

§ 2L1.2(b)      (2012)     and    to    count      it    in    calculating        criminal

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history,     where    prior     offense       accounted      for     six   of    twelve

criminal      history      points    and        sixteen-level          enhancement).

Further, there was no substantive error in correctly calculating

the offense level based upon Deras-Lovo’s marijuana conviction.

See United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.

2006) (finding that, even in light of significant sentencing

disparities, failure to impose below-Guidelines sentence was not

substantively unreasonable given totality of the circumstances).

             Next,    Deras-Lovo     contends         that     his     sentence      was

substantively unreasonable because it was longer than necessary

to deter him, as his longest prior sentence was only twelve

months.      We conclude that the district court did not abuse its

discretion.      Deras-Lovo illegally reentered the United States

almost      immediately    after    being          deported.          Thus,     it   was

reasonable to believe that a substantially longer sentence was

necessary to deter him from reentering again.                          Moreover, the

district court did not base its sentence entirely on deterrence,

as it also noted the nature and circumstances of Deras-Lovo’s

offense and his criminal history.              See 18 U.S.C. § 3553.

             Finally,     Deras-Lovo      asserts      that    his     sentence      was

substantively unreasonable because the district court’s reliance

on   USSG     § 2L1.2     was   erroneous.            Specifically,        Deras-Lovo

contends that a sentence based upon § 2L1.2 is not entitled to a

presumption      of     reasonableness        in     this     court     because      the

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deportation      enhancement            is     not    based     on    empirical         data    as

required by Kimbrough v. United States, 552 U.S. 85, 110 (2007)

(holding that district court may vary from the Guidelines based

on policy disagreements).                    The Kimbrough opinion, however, did

not require district courts to consider the presence or absence

of   empirical        data        underlying          the     Guidelines,         see     United

States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir.), cert.

denied,    133   S.    Ct.    274       (2012),        nor    did    it    permit    appellate

courts     to    discard          the     presumption          of    reasonableness            for

sentences       “based       on     non-empirically             grounded       Guidelines.”

United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th

Cir. 2009).

            Here,     while        the       district        court   did    not     explicitly

address Deras-Lovo’s Kimbrough argument, * the court considered

his criminal history, his current crime, and his lack of ties to

El Salvador and found that, while a departure was warranted for

cultural    assimilation,           a    within-Guidelines            range    sentence        was

appropriate.        The      fact       that    the    relevant       Guidelines        are    not

“empirically-based” does not provide a basis to second guess the

district    court’s       conclusion            that    a     Guidelines      sentence         was

     *
       This argument was raised in Deras-Lovo’s motion for a
departure based on cultural assimilation, which was granted,
although not to the extent sought by Deras-Lovo. Deras-Lovo did
not reargue this issue at the sentencing hearing when seeking a
variance sentence.



                                                 6
appropriate.         See     Mondragon-Santiago,          564        F.3d    at    367.

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

discretion when it relied on USSG § 2L1.2.

           Pursuant to Anders, we have examined the record for

any   meritorious    issue    and   have      found    none.         Accordingly,    we

affirm    Deras-Lovo’s       conviction       and     sentence.          This     court

requires that counsel inform Deras-Lovo in writing of his right

to petition the Supreme Court of the United States for further

review.    If Deras-Lovo requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel   may    move      this   court       for     leave    to     withdraw     from

representation.      Counsel’s motion must state that a copy thereof

was   served    on   Deras-Lovo.      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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