                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4599


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LAZARO GUTIERREZ-BUSTOS, a/k/a Lazaro Bustos,

                Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         Thomas D. Schroeder,
District Judge. (1:08-cr-00373-TDS-1)


Submitted:   October 28, 2011             Decided:     December 5, 2011


Before NIEMEYER and     GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lazaro Gutierrez-Bustos pled guilty to one count of

illegal    reentry       of   a    deported       alien    who   had     previously            been

convicted    of     an    aggravated       felony     in    violation          of       8    U.S.C.

§ 1326(a), (b)(2) (2006).              The district court sentenced him to

eighty-two months’ imprisonment and he now appeals.                                 Finding no

error, we affirm.

             Gutierrez-Bustos              challenges        the     district               court’s

imposition of a departure sentence pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 4A1.3 (2008).                       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.                Finally, this court

considers     the        substantive       reasonableness          of     the           sentence,

“tak[ing]     into       account     the     totality       of     the    circumstances,

including the extent of any variance from the Guidelines range.”

Id.

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               When reviewing a departure, we consider “whether the

sentencing          court    acted       reasonably       both        with    respect     to   its

decision       to    impose       such    a   sentence         and    with     respect    to   the

extent of the divergence from the sentencing range.”                                         United

States    v.     Hernandez-Villanueva,              473        F.3d    118,     123    (4th    Cir.

2007).         Under USSG § 4A1.3(a)(1), “[i]f reliable information

indicates        that       the     defendant’s           criminal           history     category

substantially              under-represents              the        seriousness         of     the

defendant’s          criminal        history        or    the         likelihood       that    the

defendant will commit other crimes, an upward departure may be

warranted.”          We have thoroughly reviewed the record and conclude

that     the    district       court’s        decision         to     upwardly        depart   was

reasonable,          the    extent       of   the    departure          is     reasonable      and

supported by the record, and the court adequately explained both

its decision to depart and the extent of its departure.                                        See

United States v. Lawrence, 349 F.3d 724, 727-28 (4th Cir. 2003).

Finally, we find Gutierrez-Bustos’ assertion that the district

court should have departed downward sua sponte on the basis of

cultural assimilation to be without merit.

               Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions          are    adequately          presented        in    the     materials




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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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