                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4642


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LUCIO DELEON-RAMIREZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:12-cr-00039-REP-1)


Argued:   September 20, 2013                 Decided:   October 16, 2013


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.     Michael Calvin
Moore, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Caroline S. Platt, Alexandria Virginia, Valencia D.
Roberts, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Appellant Lucio Deleon-Ramirez (“Appellant”) pleaded

guilty    to    a    violation     of    8       U.S.C.     §§     1326(a),       (b)(1)   for

illegally reentering the United States after removal subsequent

to   a   felony      conviction.         At      sentencing,        the    district    court

granted    the      Government’s        motion        for     an   upward    variance      and

sentenced Appellant to 48 months imprisonment and three years of

supervised       release.          Appellant           challenges         this     sentence,

asserting that the district court’s imposition of a sentence of

48 months imprisonment was unreasonable, and the district court

plainly    erred       in    imposing        a       sentence      of     three    years    of

supervised release notwithstanding the United States Sentencing

Guidelines          (“Guidelines”)        recommendation                against     imposing

supervised release on a deportable alien.

               We conclude the sentence of imprisonment imposed by

the district court was substantively reasonable.                                  We further

conclude the sentence of three years of supervised release was

not plain error because imposing a term of supervised release on

a    deportable      alien   who    is    likely         to     illegally     reenter      the

country is an appropriate method of deterrence.                            Accordingly, we

affirm.

                                              I.

               Appellant was born in Guatemala in 1977 and claims he

fled his native country for Mexico at a young age due to civil

                                                 2
war.     He also claims he suffered sexual abuse in both Guatemala

and Mexico.       Appellant lived in Mexico until sometime in 1995,

when   he   first    illegally        entered     the    United      States.          Since

illegally entering the United States, Appellant has developed a

long pattern and practice of illegally reentering the country

after deportation.

             On June 17, 2001, Appellant was arrested by the United

States    Boarder    Patrol      and    charged       with    an    “inadmissible        at

entry” misdemeanor in the United States District Court for the

Southern     District      of   Texas.          Appellant     pleaded      guilty      and

received a 90-day suspended sentence; he was then removed to

Mexico on June 18, 2001.

             On June 22, 2001, Appellant was again encountered by

the    United     States    Border      Patrol     in     Texas      and   voluntarily

returned    to    Mexico.       Appellant       was     not   prosecuted        for   this

conduct and was only in Mexico a short time before once again

illegally returning to the United States.

             On   February      13,    2004,    Appellant      was    encountered        by

Immigration and Customs Enforcement (“ICE”) Agents in Colorado

following    a    traffic    stop.       An     immigration        judge   in   Colorado

ordered     Appellant      removed     to     Mexico     on   February      25,       2004.

Again, Appellant was not prosecuted for this conduct and was in

Mexico only a few days before yet again returning to the United

States.

                                            3
            On    August    3,    2007,     Appellant   was       convicted      in   the

Circuit Court of Richmond, Virginia, of driving with a suspended

license and sentenced to 90 days of incarceration with 60 days

suspended.

            On    November       27,   2009,    Appellant      was    arrested        for

assault and battery in Richmond, Virginia.                    Although Appellant

was not prosecuted for the assault charge, he was charged and

convicted of illegal reentry in the United States District Court

for   the   Eastern   District         of   Virginia    --    notably,      the       same

district court as in the instant matter.

            During    his        sentencing     hearing      on     May    21,    2010,

Appellant stated to the district court, “I want to be deported

as soon as possible.         I want to take my family with me and never

come back to this country.             I want to say I am sorry for coming

to this country.”           J.A. 111. 1         The district court sentenced

Appellant    to    seven     months         imprisonment      and    one      year     of

supervised release.        In doing so, the district court stated,

                 Mr. Deleon-Ramirez, if you ever come
            back to this country again illegally you
            will be caught, you will be prosecuted, your
            sentence will be a very long one. You came
            about that far away from having a two-year
            sentence today.   And if the government had
            not [sic] been inclined to ask for it I
            would have been inclined to give it.     So,

      1
       Citations to the Joint Appendix (“J.A.”) refer to the
Joint Appendix filed by the parties in this appeal.



                                            4
                 you start off with that break. But you will
                 get no other break. You can’t come to this
                 country    without    complying   with   the
                 immigration laws no matter why you come.

J.A. 115.         After serving his sentence, Appellant was removed to

Guatemala        on   October     6,   2010.       Sometime     thereafter,      he   once

again illegally returned to the United States.

                 On February 26, 2012, ICE Agents located Appellant in

Chesterfield County, Virginia, where he was in jail awaiting

trial on charges of driving while intoxicated. 2                       Thereafter, on

March 6, 2012, a federal grand jury in the Eastern District of

Virginia indicted Appellant on one count of illegal reentry, the

instant offense.            On April 25, 2012, Appellant pleaded guilty

and appeared before the district court on July 30, 2012, for

sentencing.

                 The Government moved for an upward variance, arguing

that       the    calculated      Guidelines       range   of     10   to   16    months

imprisonment          was   not   adequate      considering      the   nature    of   the

offense, the history and characteristics of Appellant, the need

to protect the public, and the need to deter Appellant’s future




       2
       Appellant was convicted of misdemeanor driving while under
the influence and misdemeanor driving without a license on June
13, 2012, and was sentenced to a total of 12 months
incarceration with ten months suspended, and three years of
probation.



                                               5
criminal conduct.         The Government recommended a sentence of 60

months imprisonment and one year of supervised release.

            In response, Appellant argued that the district court

should consider Appellant’s past history of alleged sexual abuse

and the conditions in Guatemala when deciding an appropriate

sentence.     Appellant suggested a within-Guidelines sentence of

14 months imprisonment as adequate deterrence.             Just as he had

done   when   he    was    sentenced   for    illegal   reentry   in   2010,

Appellant once again told the district court that he was sorry

and that he was going to take his children, leave this country

and not return.     Specifically, Appellant opined:

                 I just want to say that I did come back
            into your country.    I did the wrong thing
            coming back illegally, but I’m pretty sorry.
            I have my two kids here, but now I’m going
            to take back my kids to my country.     And I
            will stay back there. If there is any way I
            can come back -- I will come back, but
            legally with the permission or visa.
                 Now I understand your law.      The last
            two years in 2010 I didn’t understand.      I
            know if you come back you’re going to get
            this, okay.   Now I came back and I got --
            I’m here again, but the jail, it’s not for
            me.   So I understand now that I don’t have
            to come back.

J.A. 95–96.

            Given    that     Appellant      had   illegally   entered   or

reentered the United States on multiple occasions, the district

court agreed with the Government that an upward variance was

warranted and varied Appellant’s sentence upward to 48 months

                                       6
imprisonment, to be followed by a three-year term of supervised

release.        At no time during the sentencing hearing or in any

filings before the district court did Appellant object to the

imposition of a term of supervised release.

            On appeal, Appellant argues his sentence of 48 months

imprisonment is substantively unreasonable because (1) it over-

deters    and    does     not      adequately      consider       the    nature       of   his

offense or his history and characteristics; and (2) it creates

an   unwarranted        sentencing     disparity.             Additionally,         Appellant

argues the district court committed plain error by imposing a

three-year       term    of     supervised         release      because       he    will    be

deported     upon      his    release       from    prison,      and     the       Guidelines

recommend against imposing supervised release on a deportable

alien.     The Government disputes Appellant’s contentions, arguing

that Appellant’s sentence is reasonable given his prior illegal

reentries,       and    the     district      court      was    not     prohibited         from

imposing a term of supervised release on Appellant.

                                             II.

            We    review      a    sentence       for   reasonableness         applying       a

deferential        abuse-of-discretion              standard          “[r]egardless          of

whether the sentence imposed is inside or outside the Guidelines

range.”         Gall    v.    United    States,         552    U.S.     38,    51    (2007).

Appellant concedes the district court committed no procedural

error,     therefore,         we     need     only      address         the    substantive

                                              7
reasonableness of Appellant’s sentence.                              When considering the

substantive    reasonableness         of    the       sentence         imposed,        we    “take

into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.”                              Id.     “If the

district     court    decides     to       impose          a     sentence       outside       the

Guidelines range, it must ensure that its justification supports

the ‘degree of the variance.’”              United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 50).

             Appellant     concedes        that       he       did    not     object    to    the

imposition or length of a term of supervised release before the

district     court.      Therefore,        we     review         the     district       court’s

decision to impose a term of supervised release for plain error.

See   Fed.    R.   Crim.    P.    52(b)         (“A    plain          error     that    affects

substantial    rights      may   be   considered               even    though    it     was   not

brought to the court’s attention.”).                       It is Appellant’s burden

to demonstrate the following: “(1) there [was] an error; (2) the

error [was] plain, meaning obvious or clear under current law;

and (3) the error . . . affect[ed] substantial rights.”                                     United

States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010) (internal

quotation marks omitted).




                                            8
                                          III.

                                           A.

                         Substantive Reasonableness

            We    reject     Appellant’s         arguments       that     the       district

court over-deterred or failed to adequately consider either the

nature of Appellant’s offense or his history and characteristics

and that the district court created an unwarranted sentencing

disparity.       Pursuant to 18 U.S.C. § 3553(a), a sentencing court

must consider “the nature and circumstances of the offense and

the history and characteristics of the defendant,” “the need for

the sentence imposed . . . to afford adequate deterrence to

criminal conduct,” and “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been

found    guilty   of   similar      conduct.”           18    U.S.C.    §§     3553(a)(1),

(2)(B), (6).      In considering these factors, the sentencing court

“‘must    make    an   individualized       assessment          based     on    the    facts

presented.’”        United States v. Evans, 526 F.3d 155, 161 (4th

Cir.    2008)    (quoting    Gall    v.   United        States,    552       U.S.     38,   50

(2007)).

            Here,      the    district          court        considered        Appellant’s

arguments about his personal history and violence in Guatemala.

Appellant urged the district court to take into consideration

the fact that he left Guatemala due to civil unrest and the

violence that he and his family faced there.                      The district court

                                           9
did       so, 3        but     in    considering            Appellant’s        history     and

characteristics, it found more compelling Appellant’s history of

illegal reentry into the United States.

                  At     sentencing,       the      district        court   discussed       the

appropriate            deterrence       for    Appellant.            The    district      court

considered             that    neither     the      seven-month       sentence     Appellant

served for his first conviction, nor the threat of a two-year

sentence          by     the    court    at      his      first     sentencing,        deterred

Appellant          from       continuing      to        illegally    reenter     the     United

States.           In light of those considerations, the district court

determined, “[i]n fact, it would not be inappropriate to impose

a sentence approaching the statutory maximum of [ten] years in

order to [deter Appellant], but I think that would be greater

than is necessary.”                 J.A. 97.        The district then decided on a

sentence of 48 months imprisonment.                          In imposing sentence, the

district court stated,

                       The last time he was here before this
                  Court he was told that he was a hairs-
                  breadth away from a 2-year sentence, but
                  that because the government had asked for a
                  lenient sentence of seven months this Court
                  agreed to that and that that was an


      3
       The district court stated, “[b]ut there’s no evidence that
[Appellant] was exposed to any of [the violence] or harmed by
any of it, . . . and so what you’re in essence asking me to do
is take into account the general conditions in a country that
don’t seem to have any particular pertinence to him.” J.A. 87.



                                                   10
             appropriate       sentence      under      all
             circumstances.
                   What is clear now beyond question is
             that the defendant has no respect for the
             laws of the United States.      That even the
             threat of a 2-year sentence certainly will
             not deter him. It is necessary to impose a
             sentence of sufficient length to deter him
             from ever returning to this country again
             illegally, and to serve as an example to
             those who would take advantage of the
             leniency afforded in the federal courts to
             those    who   illegally   enter    and   then
             immediately, or very closely thereafter,
             come back to the United States illegally.
                   I find that it is necessary to impose
             an extremely lengthy period of confinement
             in order to protect the people of this
             country, to promote respect for the law, and
             to deter the defendant in view of his
             repeated violations of the law.

J.A. 96–97.

             Based     on   the       record     before      us,    it    is    clear   that

contrary     to     Appellant’s        assertions,        the      district     court    did

conduct a thorough, individualized assessment of the nature and

circumstances of the offense and the history and characteristics

of Appellant in light of the § 3553(a) factors.                          Furthermore, it

was not an abuse of discretion for the district court to place

significant        emphasis      on   Appellant’s       repeated         illegal      reentry

into the United States.                See United States v. Rivera-Santana,

668   F.3d    95,     104-05      (4th    Cir.       2012)      (holding       that   upward

variance was justified based on the § 3553(a) factors where the

district court considered, inter alia, Rivera–Santana’s “dogged

defiance     and    lack    of    respect      for    the    law,    having      repeatedly

                                            11
reentered the United States illegally after being deported, and

then committing further criminal offenses”); cf. United States

v.   Savillon-Matute,         636     F.3d      119,     122        (4th    Cir.      2011)

(determining     district       court’s        above-Guidelines            sentence     was

reasonable under § 3553(a) where the district court considered,

inter alia, that “Savillon–Matute came back twice after being

deported”   (internal        quotation        marks    omitted)).          The    district

court   imposed       a    sentence      it    felt     was    adequate          to   deter

Appellant, was below the recommendation of the Government, and

was well below the statutory maximum of ten years.

            Accordingly, we conclude the district court did not

abuse its discretion, and Appellant’s sentence of imprisonment

was substantively reasonable.

                                          B.

                                    Plain Error

            Finally, Appellant argues the district court committed

plain error by imposing a three-year term of supervised release

because Appellant will be deported at the end of his term of

incarceration.        We disagree.

            In attempt to support his position, Appellant points

to the Guidelines, arguing that a sentencing court “ordinarily

should not impose a term of supervised release in a case in

which   supervised        release   is   not     required      by    statute      and   the

defendant   is    a    deportable     alien      who    likely      will    be    deported

                                          12
after imprisonment.”    U.S.S.G. § 5D1.1(c) (2011).       Appellant

should read further, however.   Appellant’s argument ignores the

Guidelines’ illumination on this point:

           In a case in which the defendant is a
           deportable alien specified in subsection (c)
           and supervised release is not required by
           statute, the court ordinarily should not
           impose a term of supervised release. Unless
           such a defendant legally returns to the
           United   States,   supervised   release   is
           unnecessary. If such a defendant illegally
           returns to the United States, the need to
           afford adequate deterrence and protect the
           public ordinarily is adequately served by a
           new prosecution. The court should, however,
           consider imposing a term of supervised
           release on such a defendant if the court
           determines it would provide an added measure
           of deterrence and protection based on the
           facts and circumstances of a particular
           case.

Id. at cmt. application n.5 (emphasis supplied).

           It is clear, therefore, that the imposition of a term

of supervised release on Appellant, a deportable alien, was not

plain error.   The district court was permitted to impose such a

sentence based on the facts and circumstances of this particular

case, which is precisely what it did.     Under the circumstances,

it was not plain error for the district court to determine that

the imposition of a term of supervised release was a necessary

measure of deterrence in light of Appellant’s repeated illegal

reentries into the country after having been warned about such

conduct.


                                13
                                  IV.

          For   the   foregoing   reasons,   the   judgment    of   the

district court is

                                                              AFFIRMED.




                                  14
