                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4246


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIO DE JESUS    MARTINEZ-INTRERIANO,      a/k/a   Jose   Carranza-
Contreras,

                Defendant -   Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cr-00266-BO-1)


Submitted:   December 15, 2010              Decided:   January 13, 2011


Before SHEDD, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven A. Feldman, FELDMAN & FELDMAN, Uniondale, New York, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Sebastian Kielmanovich, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Mario de Jesus Martinez-Intreriano pleaded guilty to

illegally       reentering          the   country     after     having     been         deported

following a conviction for an aggravated felony, in violation of

8 U.S.C. § 1326(a), (b)(2) (2006).                    The district court sentenced

Martinez-Intreriano to fifty-seven months of imprisonment and he

now appeals.         For the reasons that follow, we affirm.

               Martinez-Intreriano             argues    that     the     district           court

erred in failing to adequately explain the chosen sentence.                                      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.), cert. denied, 130 S. Ct. 290 (2009).                              In so doing, we

first examine the sentence for “significant procedural error,”

including “failing to calculate (or improperly calculating) the

[g]uidelines         range,     treating       the     [g]uidelines        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.        We   then     “‘consider       the    substantive

reasonableness         of     the    sentence       imposed.’”       United         States       v.

Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at

51), cert. denied, 129 S. Ct. 476 (2008).                          If the sentence is

within    the       guidelines       range,    then     we   apply   a    presumption            of

                                                2
reasonableness.              Rita v. United States, 551 U.S. 338, 346-59

(2007)         (upholding            presumption             of         reasonableness        for

within-guidelines sentence).

               We have held that a district court must conduct an

“individualized             assessment”      of       the    particular      facts      of   every

sentence, whether the court imposes a sentence above, below, or

within the guidelines range.                  United States v. Carter, 564 F.3d

325,     330       (4th      Cir.    2009).            While       “[t]his    individualized

assessment need not be elaborate or lengthy, . . . it must

provide a rationale tailored to the particular case at hand and

adequate to permit meaningful appellate review.”                                    Id. at 330

(internal quotation marks and citation omitted).                                  In addition,

“[w]here       [the         parties]    present[]            nonfrivolous         reasons     for

imposing       a    .   .    .   sentence     [outside            the    advisory    guidelines

range,]    .       .    .   a    district    judge          should      address   the    party’s

arguments and explain why he has rejected those arguments.”                                   Id.

at 328 (internal quotation marks and citation omitted).

               Moreover, “[b]y drawing arguments from § 3553 for a

sentence different than the one ultimately imposed, an aggrieved

party     sufficiently              alerts        the        district        court      of    its

responsibility              to      render        an        individualized          explanation

addressing         those        arguments,    and       thus       preserves      its    claim.”

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                                      In

order to preserve a claim, however, a defendant must argue for a

                                                  3
sentence different than that ultimately imposed.                              See id.; see

also United States v. Thompson, 595 F.3d 544, 546 (4th Cir.

2010) (“[A] defendant need only ask for a sentence outside the

range calculated by the court prior to sentencing in order to

preserve his claim for appellate review.”) (citation omitted).

Where a defendant has failed to preserve the claim for appellate

review, we review for plain error.

            Martinez-Intreriano                argues      that    the     district      court

failed to explain the within-guidelines sentence, and failed to

respond to his nonfrivolous sentencing arguments.                                 We agree.

However, while Martinez-Intreriano argued factors in mitigation

at   sentencing,           he    never    requested          a     sentence      below    the

guidelines       range      or    otherwise          different      than    the    sentence

imposed by the district court.                      Therefore, we review this issue

for plain error.

            “To establish plain error, [Martinez-Intreriano] 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

Martinez-Intreriano satisfies these requirements, “correction of

the error remains within our discretion, which we should not

exercise     .     .   .    unless       the    error       seriously      affect[s]       the

fairness,        integrity         or     public           reputation       of     judicial

proceedings.”            Id.     (internal          quotation      marks    and    citation

                                                4
omitted).      We have thoroughly reviewed the record and conclude

that    Martinez-Intreriano    has   failed      to   demonstrate    that   the

court’s failure to adequately explain the chosen sentence was

plain error.

            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

before   the   court   and   argument    would    not   aid   the   decisional

process.

                                                                      AFFIRMED




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