                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5016


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIO ALBERTO AGUILAR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00140-F-1)


Submitted:   November 28, 2012            Decided:   December 20, 2012


Before MOTZ, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Francis A. Pommett, III, NATHANSON & POMMETT, Baltimore,
Maryland, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Mario Alberto Aguilar pleaded guilty to one count of

illegally reentering the United States after having been removed

as   an    aggravated       felon,        in    violation      of    8   U.S.C.   § 1326(a),

(b)(2)      (2006).          The      district         court        calculated     Aguilar’s

Guidelines       range      under    the        U.S.   Sentencing        Guidelines    Manual

(2010)     at    thirty-seven        to        forty-six      months’    imprisonment     and

sentenced Aguilar to forty-six months’ imprisonment.                              On appeal,

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), which concedes that Aguilar’s guilty plea was

knowing and voluntary and that his sentence was reasonable, and

concludes       that     there      are    no     meritorious        issues    for    appeal.

Aguilar was advised of his right to file a pro se supplemental

brief, but has not done so.                     The Government declined to file a

brief.      We affirm.

                Because Aguilar did not move in the district court to

withdraw his guilty plea, we review the Rule 11 hearing for

plain error.        United States v. Martinez, 277 F.3d                       517, 525 (4th

Cir.      2002).       To    prevail       under       this    standard,      Aguilar   must

establish that an error occurred, was plain, and affected his

substantial rights.            United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009).                   Our review of the record establishes

that the district court substantially complied with Rule 11’s



                                                  2
requirements,      ensuring      that    Aguilar’s          plea    was    knowing    and

voluntary.

            We    review      Aguilar’s          sentence    under     a     deferential

abuse-of-discretion standard.                Gall v. United States, 552 U.S.

38, 51 (2007).          This review requires consideration of both the

procedural and substantive reasonableness of the sentence.                           Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                            After

determining whether the district court correctly calculated the

advisory    Guidelines       range,     we       must   decide     whether    the    court

considered       the     § 3553(a)      factors,         analyzed     the      arguments

presented    by        the   parties,    and        sufficiently       explained      the

selected sentence.           Lynn, 592 F.3d at 575-76; United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).

            Once we have determined that the sentence is free of

procedural error, we consider the substantive reasonableness of

the   sentence,        “tak[ing]     into        account    the     totality    of    the

circumstances.”          Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575.

If the sentence is within the appropriate Guidelines range, we

apply a presumption on appeal that the sentence is reasonable.

United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.

2010).     Such a presumption is rebutted only if the defendant

demonstrates “that the sentence is unreasonable when measured

against the § 3553(a) factors.”                  United States v. Montes-Pineda,



                                             3
445   F.3d   375,    379    (4th    Cir.    2006)       (internal    quotation   marks

omitted).

             In this case, the district court correctly calculated

and considered the advisory Guidelines range, and heard argument

from counsel and allocution from Aguilar.                     The court considered

the § 3553(a) factors and explained that the within-Guidelines

sentence was warranted in light of the nature and circumstances

of Aguilar’s offense, and the need for the sentence to reflect

the seriousness of the offense and to protect the public from

further crimes by Aguilar.            Further, neither counsel nor Aguilar

offers any grounds to rebut the presumption on appeal that the

within-Guidelines sentence of forty-six months’ imprisonment is

substantively       reasonable.        Accordingly,         we    conclude    that   the

district     court    did    not     abuse       its    discretion    in     sentencing

Aguilar.

             In accordance with Anders, we have reviewed the entire

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 Aguilar, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Aguilar requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this Court for leave to withdraw from



                                             4
representation.    Counsel’s motion must state that a copy thereof

was served on Aguilar.

            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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