                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4917


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MIGUEL MORALES RAMIREZ,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:18-cr-00084-REP-1)


Submitted: July 18, 2019                                          Decided: July 22, 2019


Before WILKINSON, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Appellate Attorney, Nia
A. Vidal, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States
Attorney, Alexandria, Virginia, S. David Schiller, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Miguel Morales Ramirez appeals the 36-month upward variant sentence that was

imposed after he pled guilty, pursuant to a plea agreement, to illegal reentry by a felon, in

violation of 8 U.S.C. § 1326(a), (b)(1) (2012). Ramirez’s sole argument is that the

district court procedurally erred by failing to provide an individualized explanation for

the upward variance. Finding no error, we affirm.

       “[I]f a party repeats on appeal a claim of procedural sentencing error . . . which it

has made before the district court, we review for abuse of discretion” and will reverse

unless we can conclude “that the error was harmless.” United States v. Lynn, 592 F.3d

572, 576 (4th Cir. 2010). Thus, where, as here, “an aggrieved party sufficiently alerts the

district court of its responsibility to render an individualized explanation” by drawing

arguments from 18 U.S.C. § 3553 (2012) “for a sentence different than the one ultimately

imposed,” the party sufficiently “preserves its claim.” Id. at 578.

       We conclude that the district court did not abuse its discretion when it imposed

Ramirez’s upward variant sentence. A district court “has flexibility in fashioning a

sentence outside of the Guidelines range,” and need only “set forth enough to satisfy the

appellate court that it has considered the parties’ arguments and has a reasoned basis” for

its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (internal

quotation marks and brackets omitted). Thus, “a district court’s explanation should

provide some indication (1) that the court considered the § 3553(a) factors with respect to

the particular defendant[;] and (2) that it has also considered the potentially meritorious



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arguments raised by both parties about sentencing[.]” United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006) (internal citations omitted).

       “[I]n determining whether there has been an adequate explanation, we do not

evaluate a court’s sentencing statements in a vacuum[;]” rather, “[t]he context

surrounding a district court’s explanation may imbue it with enough content for us to

evaluate both whether the court considered the § 3553(a) factors and whether it did so

properly.” Id. at 381. The context of a defendant’s sentencing can also make clear that

the district court considered defense counsel’s arguments for a different sentence but

found them insufficient. See Rita v. United States, 551 U.S. 338, 359 (2007). We have

reviewed the record and considered the parties’ arguments and conclude that the district

court was engaged during Ramirez’s sentencing hearing and said enough to satisfy this

court that it considered the parties’ arguments and had a reasoned basis for imposing the

upward variant sentence.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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