                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4403



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


FERMIN VALLES MORALES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:06-cr-00082-F)


Submitted:   January 29, 2008          Decided:     February 14, 2008


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Fermin V. Morales was charged in a one-count indictment

with   being   in    the    United   States    following   a   deportation,    in

violation of 8 U.S.C. § 1326 (2000).             Morales pled guilty and was

sentenced to thirty-seven months’ imprisonment, in conformity with

his advisory Guidelines range.             On appeal, Morales argues his

sentence was procedurally unreasonable.            We affirm the judgment of

the district court.

            Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

The    district     court    must    calculate    the   appropriate   advisory

Guidelines range by making any necessary factual findings.               United

States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).                The court

should then consider the resulting advisory Guidelines range in

conjunction with the factors set out in 18 U.S.C. § 3553(a) (West

2000 and Supp. 2007), afford the parties an opportunity to argue

for the sentence they deem appropriate, and determine the sentence.

Gall v. United States, 128 S. Ct. 586, 596-97 (2007).              Considering

the factors in § 3553(a) does not require the sentencing court to

“robotically tick through” every subsection of § 3553(a).               United

States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).                   The

sentencing court may not presume that the Guidelines range is

reasonable, but if it decides to impose a sentence outside the

Guidelines range it “must consider the extent of the deviation and


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ensure that the justification is sufficiently compelling to support

the degree of the variance.”          Id. at 596.

             The   appellate      court        reviews      a       sentence      for

reasonableness, focusing on whether the district court abused its

discretion. United States v. Pauley, ___ F.3d ___, 2007 WL 4555520

(4th Cir. Dec. 28, 2007).             This involves two steps:                 first,

examining the sentence for “significant procedural errors,” and

second, evaluating the substance of the sentence.                       Id. at *5.

Significant procedural errors include “failing to calculate (or

improperly     calculating)     the     Guidelines       range,       treating    the

Guidelines as mandatory, failing to consider the § 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.”                         Id.

(internal quotations omitted).          “Substantive reasonableness review

entails taking into account the totality of the circumstances,

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

Id. at *5.    While the appellate court may presume a sentence within

the Guidelines range to be reasonable, it may not presume a

sentence outside the range to be unreasonable.                  Moreover, it must

give “due deference” to the district court’s decision that the

§ 3553(a) factors justify the extent of any variance sentence.

             Morales   argues    that    his    sentence        was    procedurally

unreasonable because the district court imposed his sentence based


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on an erroneous belief that he had illegally reentered the United

States on more than one occasion.          As Morales failed to object to

the district court’s alleged error or otherwise raise his claim in

the district court, his claim is reviewed for plain error.                Fed. R.

Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993).

Plain error review requires the defendant to establish that:                 (1)

there was error; (2) the error was “plain;” and (3) the error

affected the defendant’s substantial rights.             Olano, 507 U.S. at

732.    Even if the defendant makes this required showing, "Rule

52(b) leaves the decision to correct the forfeited error within the

sound discretion of the court of appeals, and the court should not

exercise that discretion unless the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings."

Id.    (quoting    United   States   v.   Young,   470   U.S.   1,   15   (1985)

(internal quotations omitted)).

            We have reviewed the disputed portion of the sentencing

hearing transcript and determine that Morales fails to establish

either that error occurred or that such error was “plain.”                  When

read in context, the transcript does not plainly establish that the

district court sentenced Morales under the mistaken belief that he

had reentered the United States multiple times following his

deportation.       Also, Morales’ sentence was otherwise procedurally

reasonable.       Prior to sentencing Morales, the district court heard

from Morales and defense counsel and properly calculated Morales’


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advisory Guidelines range.    Also, prior to imposing sentence, the

court considered the advisory sentencing guidelines, other relevant

factors set forth in the advisory sentencing guidelines, and the

factors in 18 U.S.C. § 3553(a).

            Morales’ sentence was also substantively reasonable.

After illegally entering the United States, Morales was arrested in

possession of twenty pounds of marijuana. Morales was subsequently

deported.     However, he returned and, within five years of again

illegally entering the United States, was charged with trafficking

in cocaine.    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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