                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4614


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FRANCISCO ANTONIO NOLASCO-RAMIREZ, a/k/a Carlos Rojas,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:08-cr-00510-REP-1)


Submitted:   July 16, 2010                 Decided:   August 6, 2010


Before DUNCAN and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant.    Neil
H. MacBride, United States Attorney, S. David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Francisco   Antonio      Nolasco-Ramirez,             a     Guatemalan

citizen, pleaded guilty to one-count of illegal reentry after

prior   removal    and   conviction       of     an     aggravated      felony,   in

violation of 8 U.S.C. § 1326(a, b(2)) (2006) and was sentenced

to 96 months' imprisonment.         On appeal, Nolasco-Ramirez contests

the reasonableness of his sentence, arguing that the district

court should not have imposed a sixteen level increase pursuant

to United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A).

For the following reasons, we affirm.



                                      I.

             Nolasco-Ramirez    first       entered        the     United     States

illegally     without    inspection        in     1995,     near       San   Ysidro,

California.       In May 1996, he was convicted in New Jersey of

robbery,     an   aggravated   felony           under    the     Immigration      and

Nationality Act (INA).         Immigration officials placed Nolasco-

Ramirez into removal proceedings in February 1997, and, in July

1999,   an    immigration   judge    ordered          Nolasco-Ramirez        removed.

Nolasco-Ramirez was removed from the United States to Guatemala

in January 2000; at the time, he was properly served with an I-

294 form notifying him of the penalties for future attempts to

illegally reenter the United States.



                                      2
               Nolasco-Ramirez reentered the United States, without

approval,      and    was     convicted        of   grand     larceny      in    Virginia   in

December       2002,        another      aggravated          felony     under      the     INA.

Immigration          and     Customs         Enforcement       (ICE)       officers      again

arrested Nolasco-Ramirez and placed him in removal proceedings.

In June 2006, Nolasco-Ramirez was ordered removed, and the order

was carried out in July 2006.                   Nolasco-Ramirez was again served

with an I-294 form.

               Undeterred, Nolasco-Ramirez again reentered the United

States.        In October 2008, ICE officials encountered Nolasco-

Ramirez in a Virginia prison, where he was serving a sentence

for another burglary conviction.                      Nolasco-Ramirez was arrested

and,       after    waiving       his    Miranda *    rights,        provided      a   written

statement admitting that he was a Guatemalan citizen and that he

had reentered the United States after being removed.

               In    December          2008,    a    federal       grand        jury   charged

Nolasco-Ramirez            with   illegal      reentry       after    prior      removal    and

conviction of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a, b(2)).             Nolasco-Ramirez eventually pleaded guilty to

the charge, and the district court ordered the preparation of a

Pre-Sentence Report (PSR).                   The PSR calculated Nolasco-Ramirez's

base       offense    level       as    8,    but    added    16     levels      pursuant   to


       *
           Miranda v. Arizona, 384 U.S. 436 (1965).


                                                3
§ 2L1.2(b)(1)(A),      which         provides   for     the       increase     if    the

defendant was previously deported after conviction for a crime

of violence.       The PSR also reduced the offense level by 3, for

acceptance of responsibility, yielding a total offense level of

21.    With a criminal history category of VI, the PSR calculated

an advisory Guidelines range of 77-96 months' imprisonment.

            At     sentencing,        Nolasco-Ramirez         sought    a     downward

variance, arguing that § 2L1.2(b)(1)(A) lacked empirical support

or a policy basis and resulted in double counting.                      The district

court ultimately disagreed with Nolasco-Ramirez.                        In reaching

its decision, the district court began by noting that, under 18

U.S.C.     § 3553(a)(6),        which      instructs    sentencing          courts    to

consider    “the    need   to    avoid     unwarranted       sentence    disparities

among defendants with similar records who have been found guilty

of    similar    conduct,”      it   was    permitted       to    consider    Nolasco-

Ramirez’s    challenge     to    the     guideline     if    it    resulted    in    “an

unjustified difference.”             The district court found that it was

reasonable to differentiate between persons like Nolasco-Ramirez

who repeatedly reentered the United States to commit crimes of

violence and persons who reentered without committing serious

crimes.

            In sum, the district court found that a “significant

term of imprisonment” was required, among other reasons, “to

make sure that this defendant doesn’t engage in this conduct

                                            4
again.”      Accordingly, the district court adopted the PSR and

sentenced Nolasco-Ramirez to 96 months' imprisonment, the top of

the Guidelines range.         Nolasco-Ramirez filed a timely appeal.



                                         II.

            On     appeal,   Nolasco-Ramirez       argues    that   the   district

court     should    have     rejected    application    of     § 2L1.2(b)(1)(A)

because it lacks empirical support or a sound policy basis and

results in double counting.             We review a sentenced imposed by a

district court for abuse of discretion.                     See Gall v. United

States, 552 U.S. 38, 51 (2007).                The first step in this review

requires us to ensure that the district court did not commit

significant procedural error, such as improperly calculating the

Guidelines range, failing to consider the 18 U.S.C. § 3553(a)

factors, or failing to adequately explain the sentence.                     United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                      We then

review the sentence for substantive reasonableness, taking into

account the totality of the circumstances.                   Gall, 552 U.S. at

51.     In doing so, we presume that a sentence within a properly

calculated Guidelines range is reasonable.              United States v. Abu

Ali, 528 F.3d 210, 261 (4th Cir. 2008), cert. denied 129 S. Ct.

1312 (2009); see also Rita v. United States, 551 U.S. 338, 345-

59 (2007).



                                          5
              Nolasco-Ramirez          concedes        that     the        district        court

properly calculated his Guidelines range, but contends that his

sentence is nonetheless unreasonable because of the application

of   § 2L1.2(b)(1)(A).            While    the    district       court       was    free      to

consider policy decisions behind the Guidelines, including the

presence      or     absence      of     empirical       data,        as    part      of     its

consideration        of   the     §    3553(a)     factors       in    this     case,       see

Kimbrough     v.    United      States,    552    U.S.    85     (2007),       it   was      not

required to do so, United States v. Mondragon-Santiago, 564 F.3d

357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).                                     In

addition, Kimbrough did not affect our appellate presumption for

sentences within a properly calculated Guideline range.                                      See

Mondragon-Santiago, 564 F.3d at 366.                         Indeed, “[e]ven if the

Guidelines are not empirically-grounded, the rationale of Rita

undergirding the presumption still holds true: by the time an

appeals court reviews a Guidelines sentence, both the Sentencing

Commission         and    the     district       court        have     fulfilled           their

congressional mandate to consider the § 3553(a) factors and have

arrived at the same conclusion.”                 Id.

              Moreover, courts have routinely rejected the argument

that § 2L1.2(b)(1)(A) results in improper double counting.                                 See,

e.g., United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.

2009); United States v. Garcia-Cardenas, 555 F.3d 1049, 1050

(9th   Cir.    2009).           Double    counting      is     “generally       authorized

                                             6
unless the Guidelines expressly prohibit it.”              United States v.

Reevey, 364 F.3d 151, 158 (4th Cir. 2006), and Nolasco-Ramirez

has not identified any such prohibition in this case.

           We    therefore   affirm    the    district    court’s   judgment

sentencing      Nolasco-Ramirez   to   96    months'     imprisonment.      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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