                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4491


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GENARO MENDOZA RESENDIZ, a/k/a Freddie,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00366-JAB-6)


Submitted:   February 22, 2011            Decided:   March 22, 2011


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Sandra   Jane  Hairston,   Assistant   United  States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Genaro Mendoza Resendiz pled guilty pursuant to a plea

agreement     to    one      count       of       conspiracy       to    distribute          cocaine

hydrochloride, in violation of 21 U.S.C. § 846 (2006), and was

sentenced to ninety-two months in prison.                               Counsel has filed a

brief   in    accordance          with    Anders         v.    California,        386    U.S.       738

(1967),      claiming        that        although         he     believes       there        are    no

meritorious issues for appeal, it is arguable that the district

court: (i) did not comply with Fed. R. Crim. P. 11 when it

accepted     Resendiz’s           guilty          plea    because       it   did       not    inform

Resendiz     of     the      elements         the        Government       had     to     prove      to

establish      Resendiz’s           guilt;         (ii)        erred    when      it     increased

Resendiz’s        offense        level     two          levels    based      on    his       firearm

possession,        pursuant         to     U.S.          Sentencing       Guidelines          Manual

(“USSG”) § 2D1.1(b)(1) (2009), because Resendiz was not charged

with and did not plead guilty to firearm possession; and (iii)

imposed an unreasonable sentence because (a) it failed to fully

articulate        the   18       U.S.C.       §    3553(a)       (2006)      factors         when   it

imposed Resendiz’s sentence, and (b) refused to impose a variant

sentence.         Resendiz has not filed a pro se supplemental brief

despite receiving notice that he may do so, and the Government

declined     to    file      a    responsive            brief.     Finding        no    error,      we

affirm.



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            First, we find that the district court substantially

complied    with   Rule     11.   Because   Resendiz   did   not   move   the

district court to withdraw his guilty plea, any errors in the

Rule 11 hearing are reviewed for plain error.            United States v.

Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).               “To establish

plain error, [Resendiz] must show that an error occurred, that

the error was plain, and that the error affected his substantial

rights.”    United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

2007).     Even if Resendiz satisfies these requirements, the court

retains discretion to correct the error, which it should not

exercise    unless    the     error   seriously   affects    the   fairness,

integrity or public reputation of judicial proceedings.             Id.

            The    district   court   substantially    complied    with   Rule

11’s requirements, ensuring that Resendiz’s plea was knowing and

voluntary, that he understood the rights he was giving up by

pleading guilty and the sentence he faced, and that he committed

the offense to which he was pleading guilty.                 Even assuming,

arguendo, that the district court erred by failing to identify

the elements of the charge to which Resendiz pled guilty, and

that the error was plain, any error did not affect Resendiz’s

substantial rights.

            In the guilty plea context, a defendant meets this

burden by showing a reasonable probability that he would not

have pled guilty but for the court’s Rule 11 omissions.                    See

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United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

However, Resendiz does not suggest that he would not have pled

guilty had the Rule 11 colloquy been more exacting and, thus, he

fails    to     show    plain      error.       This     is     especially       true    since

Resendiz      attested       in    his   plea       agreement    that    the     nature    and

elements of the charge that the Government had to prove were

explained to him by his attorney.                     Accordingly, we conclude that

no error, plain or otherwise, was committed during the district

court’s       acceptance      of     Resendiz’s        guilty     plea     and    therefore

affirm Resendiz’s conviction.                   See id. at 344 (“In the absence

of any evidence in the record suggesting that [the defendant]

would not have entered his plea in the absence of the error in

this case, we are left with only the existence of the error

itself.”).

               We    also    affirm      Resendiz’s       sentence.           After     United

States v. Booker, 543 U.S. 220 (2005), this court reviews a

sentence       for     reasonableness,          using     an     abuse     of    discretion

standard of review.                Gall v. United States, 552 U.S. 38, 51

(2007).       The first step in this review requires the court to

ensure     that        the   district       court       committed        no     significant

procedural error.             United States v. Evans, 526 F.3d 155, 161

(4th     Cir.       2008).         Procedural        errors      include       “failing    to

calculate       (or     improperly       calculating)          the   Guidelines         range,

treating the Guidelines as mandatory, failing to consider the

                                                4
§ 3553(a)         factors,     selecting         a     sentence          based        on    clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

Guidelines range.”            Gall, 552 U.S. at 51.

              If,     and     only    if,       this    court           finds    the       sentence

procedurally reasonable can the court consider the substantive

reasonableness         of     the    sentence        imposed.             United       States      v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                               The court presumes

that a sentence within the Guidelines range is reasonable.                                        See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).                                         We

conclude that the district court committed no reversible error

when     it    imposed        Resendiz’s        sentence           and       thus     hold     that

Resendiz’s ninety-two-month sentence is reasonable.

              A     review     of     Resendiz’s            presentence          investigation

report      (“PSR”)     establishes         that       he    was        properly       placed      in

criminal      history        category       I    and        that       the    district        court

correctly attributed him with a total offense level of twenty-

nine, yielding a Guidelines range of eighty-seven to 108 months.

See USSG §§ 2D1.1, 3E1.1; ch.5, pt. A (2009).                                Although counsel

suggests      that    Resendiz’s       offense         level       should       not    have     been

increased two levels pursuant to USSG § 2D1.1(b)(1), we conclude

that   it     was    appropriate       for      Resendiz’s             offense      level    to    be

increased      based     on    his    possession            of     a    firearm       during      the



                                                5
commission of the crime to which he plead guilty.                                            See USSG

§ 2D1.1(b)(1), cmt. n.3 (2009).

               At sentencing, the district court adopted the PSR’s

factual        findings        and     Guidelines             range        calculations,              and

appropriately afforded counsel an opportunity to argue for a

variant        sentence,        in    compliance             with      Fed.       R.        Crim.      P.

32(i)(3)(A), (i)(4)(A)(i).                   Although not raised by counsel in

the Anders       brief,     we       note    that       the    district         court        committed

error    when     it    failed        to    afford          Resendiz       an    opportunity           to

allocute        prior     to     sentencing.                  See     Fed.        R.        Crim.     P.

32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301,

305 (1961) (“[T]rial judges should leave no room for doubt that

the defendant has been issued a personal invitation to speak

prior     to    sentencing.”).               Because          Resendiz          did        not   object

regarding allocution in the district court, that error is also

subject to plain error review.                         See United States v. Lewis, 10

F.3d 1086, 1092 (4th Cir. 1993) (applying plain error analysis

to allocution denial).

               The     denial    of    allocution            does    not    per       se     affect     a

defendant’s       “substantial             rights.”           Id.      In       this        case,     the

district       court    recognized          that       it    may    have    neglected            to   ask

Resendiz if he wished to allocute prior to imposing his sentence

and     eventually       asked        Resendiz          if    he     wished           to     allocute.

Resendiz nonetheless responded that he did not, since the issues

                                                   6
he would have addressed with the district court were already

addressed by his attorney.                 Moreover, Resendiz does not assert

that he may have received a lesser sentence had he been allowed

to allocute sooner.             Thus, because Resendiz has not established

that had he been allowed to allocute, his sentence may have been

lower, he has not established that his substantial rights were

violated and, accordingly, the district court’s error did not

amount to plain error.             Cf. United States v. Cole, 27 F.3d 996,

999 (4th Cir. 1994) (recognizing plain error as a result of

district court’s failure to allow defendant to allocute where,

after    issue     was    raised      by   defendant        on   appeal,       this    court

identified reasons why the district court may have imposed a

lesser    sentence        had    defendant       been   allowed      to    address      the

court).

             We also discern no reversible error in the district

court’s pronouncement of Resendiz’s sentence.                          In evaluating a

district court’s explanation of a selected sentence, this court

has   held      that,    although      a   district     court     must    consider      the

statutory       factors     and       explain    its    sentence,         it    need    not

explicitly reference § 3553(a) or discuss every single factor on

the record.        United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006).        However, the district court still “must make an

individualized          assessment     based     on   the    facts     presented,”      and

apply     the     “relevant       §     3553(a)       factors     to      the    specific

                                             7
circumstances of the case before it.”                     Carter, 564 F.3d at 328

(quotation marks and emphasis omitted).

            The        court     must     also    “state       in     open     court       the

particular     reasons         supporting    its    chosen      sentence”          and    “set

forth enough to satisfy” this court that it has “considered the

parties’ arguments and has a reasoned basis for exercising [its]

own   legal    decisionmaking           authority.”           Id.     (quotation         marks

omitted).      In       other    words,     the    reasons      articulated          by   the

district court for a given sentence need not be “couched in the

precise language of § 3553(a)” as long as the reasons “can be

matched to a factor appropriate for consideration under that

statute and [are] clearly tied to [the defendant’s] particular

situation.”         United       States     v.    Moulden,      478     F.3d       652,    658

(4th Cir. 2007).

            “By     drawing       arguments       from    §    3553    for     a    sentence

different      than       the      one      ultimately         imposed,        [Resendiz]

sufficiently alert[ed] the district court of its responsibility

to    render      an     individualized          explanation          addressing         those

arguments, and thus preserve[d] [his] claim.”                          United States v.

Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                      Accordingly, we review

the district court’s explanation for Resendiz’s sentence under

the abuse of discretion standard. See id. at 576; cf. United

States   v.    Hernandez,         603     F.3d     267,       270     (4th   Cir.        2010)

(reviewing claim of procedural unreasonableness for plain error

                                             8
because defendant did not argue for a sentence different from

the sentence that he received).

               Prior   to   imposing    Resendiz’s   sentence,       the   district

court explained why it rejected counsel’s argument for a variant

sentence; namely, it did not agree that Resendiz’s conduct was

similar   to     the   conduct   of    his    co-conspirator    to    warrant     the

variance.       In doing so, the district court thoroughly addressed

the nature and circumstances of Resendiz’s offense.

               Although the district court did not explicitly address

counsel’s arguments regarding his family, work history and lack

of criminal history prior to imposing sentence, the district

court clearly listened to counsel’s arguments and did state that

it   considered        Resendiz’s      advisory    Guidelines     range,        which

included Resendiz’s category I criminal history, but found that

a sentence in the middle of that range was appropriate.                         Having

expressly indicated that it considered the Guidelines and the

nature and circumstances of Resendiz’s crime in fashioning an

appropriate sentence, the district court undertook a sufficient

§ 3553(a) analysis in sentencing Resendiz.                 Cf. Johnson, 445

F.3d at 345 (recognizing that “[m]any of the               § 3553(a) factors

are already incorporated into any Guidelines determination, and

the § 3553(a) factors can themselves overlap.”).                      We conclude

that the district court did not commit “significant procedural

error”    in    failing     to   explicitly     mention   § 3553(a)        or    more

                                          9
thoroughly explain Resendiz’s sentence.                     See Lynn, 592 F.3d at

575.

            Having     discerned      no    procedural       sentencing         error,   we

presume   Resendiz’s      within-Guidelines             sentence     to    be    correct.

See Allen, 491 F.3d at 193.                    Although counsel suggests that

Resendiz’s sentence is substantively unreasonable because it is

not the variant sentence he requested, counsel’s mere suggestion

is insufficient to overcome the presumption this court affords

the    within-Guidelines         sentence.              Accordingly,        we     affirm

Resendiz’s ninety-two-month sentence.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment.                          This court

requires that counsel inform Resendiz, in writing, of the right

to petition the Supreme Court of the United States for further

review.     If Resendiz requests that a petition be filed, but

counsel   believes      that    such       a     petition    would    be    frivolous,

counsel   may   move    in     this    court      for    leave   to   withdraw         from

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

was served on Resendiz.          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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