                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5270


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

JUAN CARLOS GALVAN-MAGANA, a/k/a Juan Carlos Sandoval,

                      Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.       Thomas David
Schroeder, District Judge. (1:10-cr-00105-TDS-1)


Submitted:   August 18, 2011                 Decided:   August 22, 2011


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam
opinion.


Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Juan       Carlos         Galvan-Magana           appeals      from         his

forty-four-month sentence imposed pursuant to his guilty plea to

illegal re-entry of a convicted felon.                    Galvan-Magana challenges

his sentence on various grounds.                  We affirm.

             First, Galvan-Magana asserts that the district court

erred in denying his motion for a departure on the basis of

cultural assimilation.              However, we lack the authority to review

a district court’s denial of a downward departure unless the

district     court     did    not     recognize         its   authority     to    depart.

United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008).                                As

it is clear that the district court understood its discretion in

this matter, we dismiss this portion of the appeal.

             Second,      Galvan-Magana           challenges      his      sentence       on

various bases not raised below.                   Specifically, he asserts that

his sentence is greater than necessary and unreasonable because

it   lacks   an       empirical      basis,       the    Guidelines      overstate       the

seriousness      of    his    offense,        illegal     re-entry    permits          double

counting of prior convictions, the Guidelines create incongruous

and overreaching results, there is a disparity in sentencing

across   districts,       and       illegal    re-entry       defendants    spend        more

time    incarcerated         than    other     defendants       receiving        the    same

sentence.       While Galvan-Magana was free to argue to the district

court    that    any    or    all     of   these        circumstances      supported       a

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variance sentence, he did not do so.                 Because there was no

procedural error by the district court in its consideration of

these issues, our review on appeal is limited to considering the

substantive reasonableness of the sentence under an abuse of

discretion standard.        See United States v. Savillon-Matute, 636

F.3d 119, 122-23 (4th Cir. 2011).

             As   such,     we      “examine[]     the   totality      of   the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied

the standards set forth in [18 U.S.C.A.] § 3553(a) [(West 2000 &

Supp. 2011)].”      United States v. Mendoza-Mendoza, 597 F.3d 212,

216 (4th Cir. 2010).             We presume on appeal that a sentence

within   a   properly     calculated    Guideline     range   is    reasonable.

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

have reviewed the record and conclude that the district court

considered    the   §     3553(a)    sentencing    factors    and    imposed    a

sentence consistent with those factors.             Specifically, the court

noted    Galvan-Magana’s          continued       criminal    conduct,         his

involvement with drugs, and the need to protect the public, and

weighed these factors against Galvan-Magana’s ties to the United

States and his employment history.

             Because Galvan-Magana has not rebutted the presumption

of reasonableness accorded his              within-Guidelines sentence, we

affirm his sentence.        We dispense with oral argument because the

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facts   and   legal    contentions   are   adequately   presented    in   the

materials     before   the   court   and   argument   would   not   aid   the

decisional process.



                                                        DISMISSED IN PART;
                                                          AFFIRMED IN PART




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