                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4894


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FIDEL LUIS VIDAL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.    Glen E. Conrad, Chief
District Judge. (5:08-cr-00037-gec-mfu-1)


Submitted:   July 7, 2011                Decided:   September 12, 2011


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
Frederick T. Heblich, Jr., Assistant Federal Public Defender,
OFFICE   OF   THE  FEDERAL   PUBLIC   DEFENDER,    Charlottesville,
Virginia,   Christine  Madeleine    Lee,   Research   and   Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.      Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, Jeb T. Terrien, Assistant United
States   Attorney,  OFFICE   OF   THE   UNITED   STATES   ATTORNEY,
Harrisonburg, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Fidel Luis Vidal pled guilty to one count of being an alien

who re-entered the United States without permission after having

been deported.           The district court sentenced him to 52 months’

imprisonment.        This constituted a two-level departure from his

guideline range of 37 to 46 months.                       Vidal appeals, asserting

that the sentence imposed, which was only six months above his

guideline     range,          was    procedurally        unreasonable. 1           For     the

following reasons, we disagree and so affirm.

      We    note     at       the    outset       that   we    review     a    sentence’s

reasonableness only under the deferential abuse of discretion

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

Initial     review       is    for    “significant        procedural      error”         which

includes:     (1) “failing to calculate (or improperly calculating)

the   Guidelines          range,”       (2)       “treating      the    Guidelines          as

mandatory,” (3) “failing to consider the [18 U.S.C.] § 3553(a)

factors,” (4) “selecting a sentence based on clearly erroneous

facts,”    and     (5)    “failing      to    explain      the   chosen       sentence     --

including an explanation for any deviation from the Guidelines

range.”     Id.




      1
       Vidal also contends that his sentence is substantively
unreasonable but offers no argument, independent of his
procedural unreasonableness claims, in support of that argument.



                                              2
      Before the district court, Vidal conceded that the court

had properly calculated the Guidelines range and that no clearly

erroneous facts supported that calculation.                    The record plainly

reflects that the district court did not treat the Guidelines as

mandatory or fail to consider the § 3553(a) factors. 2                     Vidal’s

sole contention is that the district court’s explanation of its

sentence was inadequate.

      The   district    court    explained       that   it   found   a   six   month

departure from the Guidelines range warranted because, although

given “very clear and distinct warning as to what would happen

if   he   continue[d]    to     disobey       federal   law”    by   entering   the

country illegally, Vidal continued to do so.                     At some length,

Vidal points out that two of his (five) illegal entries occurred

while he was a minor and so do not constitute “prior similar

adult criminal conduct not resulting in a criminal conviction,”

a category of conduct which “may” provide a basis for an upward

departure.    See U.S.S.G. § 4A1.3(a)(2)(E), 4A1.3(a)(2) (emphasis

added).     Of course this is correct, but no Guideline prohibits

reliance on prior similar juvenile conduct not resulting in a

criminal conviction.      Cf. id. § 4A1.3(a)(3).




      2
       Although the district court did not expressly invoke
§ 3553(a), it specifically alluded to and quoted the § 3553(a)
factors.



                                          3
     Moreover,       even    if   the   Guidelines      do    not    sanction     a

departure on that basis, Vidal’s challenge fails.                     This is so

because “although adherence to the advisory Guidelines departure

provisions provides one way for a district court to fashion a

reasonable sentence outside the Guidelines range, “it is not the

only way.”    United States v. Evans, 526 F.3d 155, 164 (4th Cir.

2008) (emphasis in original).               “Rather, after calculating the

correct Guidelines range,” as the district court did here, it

“may base its sentence on the Guidelines departure provisions or

on other factors so long as it provides adequate justification

for the deviation.”         Id.

     That is precisely what the district court did here.                        The

court    justified    its    sentence   on    the   rationale      that   although

Vidal received “very clear and distinct warning[s]” as to the

illegality of his unauthorized entry into the United States, he

continued to enter illegally.               The court believed that a six

month    departure    from    the   Guideline       range    was    necessary    to

“deter” Vidal from committing like conduct in the future.                       See

§ 3553(a).    Given our deferential standard of review, we cannot

hold this rationale unreasonable. 3




     3
       The following exchange between               Vidal and the district
court prior to the imposition of                    sentence renders this
conclusion inevitable:

(Continued)
                                        4
     Thus,   we   must    reject       Vidal’s   challenge   to   the

reasonableness of the sentence.        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




     The Court: Would you have thought long and hard about
     coming into the United States this last time if you
     had understood that you could receive a period of
     incarceration of five or six or seven years or
     something of this sort, if you were caught?

     The Defendant:   Perhaps I wouldn’t have come.



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