                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUIS CRUZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:11-cr-00006-JPJ-PMS-1)


Submitted:   July 26, 2012                 Decided:   August 9, 2012


Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Debbie H. Stevens, OFFICE OF THE UNITED STATES ATTORNEY,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a written plea agreement, Luis Cruz pled

guilty to possessing prohibited objects (weapons) while in a

federal    prison,           in        violation          of     18     U.S.C.       § 1791(a)(2),

(d)(1)(B) (2006).             The district court, without a motion by the

Government,        elected         to      vary          upward       from     Cruz’s       advisory

Guidelines        range       of        twenty-seven             to    thirty-three          months’

imprisonment        and           impose         a        forty-eight-month             term       of

imprisonment,       to       be        served     consecutive            to    Cruz’s        original

federal sentence.            The district court also imposed a three-year

term of supervised release.

            Counsel for Cruz filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), certifying that there are no

nonfrivolous appellate issues, but asking that we review the

reasonableness          of    Cruz’s          sentence.               Cruz    filed     a    pro   se

supplemental brief in which he too challenges the reasonableness

of   the   variant       sentence         and     asserts         that       his    conviction     is

invalid.          For     the      reasons           that       follow,       we    reject     these

contentions and affirm the district court’s judgment.

            Turning          first       to     Cruz’s         sentence,      our     standard     of

review is familiar:                we review a sentence for reasonableness,

applying     an    abuse          of    discretion             standard.           Gall v.    United

States, 552 U.S. 38, 51 (2007).                          When a district court imposes a

sentence that falls outside of the applicable Guidelines range,

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“we consider whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with

respect      to    the    extent       of     the   divergence    from       the   sentencing

range.”       United States v. Hernandez–Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).                  In conducting this review, we “must give

due     deference         to    the      district       court’s       decision      that     the

§ 3553(a)         factors,       on    a    whole,      justify       the    extent    of    the

variance.”          Gall, 552 U.S. at 51.                   Thus, even if this court

could have reasonably selected a different sentence from that

which       the    district           court     selected,       “this       fact    alone     is

‘insufficient        to        justify      reversal       of   the     district      court.’”

United      States       v.    Pauley,      511     F.3d   468,   474       (4th   Cir.     2007)

(quoting Gall, 552 U.S. at 51).

              We conclude that Cruz’s sentence is procedurally and

substantively reasonable.                   The court properly calculated Cruz’s

advisory Guidelines range and considered the parties’ arguments

in favor of a twenty-seven-month sentence.                             Our review of the

record persuades us that the district court’s analysis of the 18

U.S.C. § 3553(a) (2006) sentencing factors as they applied to

Cruz’s case is adequate to support the upward variant sentence

ultimately imposed. *            We therefore hold that the variant sentence


        *
       Specifically, the court opined that Cruz’s history of
narcotics offenses and violent crimes, which reflected his
chronic recidivism, as well as the need to promote respect for
(Continued)
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is both procedurally and substantively reasonable.               See United

States v. Hill, __ F.3d __, 2012 WL 2899395, at *7-*8 (4th Cir.

July 17, 2012) (No. 11-4556) (holding upward variant sentence

that was sixty months’ greater than the defendant’s Guidelines

range was both procedurally and substantively reasonable because

the sentencing court’s “reasoned and reasonable decision that

the § 3553(a) factors, on the whole, justified the sentence” was

entitled to deference (internal quotation marks omitted)); see

also United States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th

Cir.) (holding an upward variant sentence that was six years

longer than the Guidelines range was substantively reasonable

because the district court expressly relied on several of the

§ 3553(a) factors to support the variance), cert. denied, 131 S.

Ct 2946 (2011).

          We next consider Cruz’s arguments pertaining to the

validity of his conviction.       Cruz asserts that he would not have

pled guilty had he been properly informed (1) of the district

court’s authority to impose a sentence in excess of the advisory

Guidelines   range   or   (2)   that   he   would   not   be   permitted   to



the law, provide deterrence, and protect the community from any
future crime by Cruz, countenanced a sentence above the
Guidelines range.   The gravity of the offense also justified a
longer sentence, the court explained, because both prison
inmates and guards are frequently injured by the type of
homemade weapons Cruz possessed.



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withdraw his guilty plea in the event that the court rejected

the    Government’s        sentencing          recommendation.           Cruz    further

asserts    that    his    attorney       was       constitutionally      deficient     for

failing to advise him on these matters.

            These claims are entirely belied by the record.                            The

transcript of Cruz’s Fed. R. Crim. P. 11 hearing reflects that

Cruz was indeed informed of the court’s authority to impose a

sentence    in    excess    of     the    advisory         Guidelines    range   and    to

reject    the    Government’s       recommendation           as   to   the   appropriate

sentence, and that he would not be permitted to withdraw his

guilty plea if the court so exercised its sentencing discretion.

We therefore reject these arguments to undermine the validity of

Cruz’s     conviction        and     the           ineffective     assistance      claim

predicated on the same allegations.                    Lastly, because this is an

Anders appeal, we have independently reviewed the plea colloquy

conducted in this case and discern no prejudicial infirmity in

that     proceeding.         Accordingly,             we    readily     affirm   Cruz’s

conviction.

            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 judgment of the district court.

This court requires that counsel inform Cruz, in writing, of the

right to petition the Supreme Court of the United States for

further review.          If Cruz requests that a petition be filed, but

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counsel believes that such a petition would be frivolous, then

counsel    may    move    in   this    court   for   leave    to    withdraw   from

representation.      Counsel’s motion must state that a copy of the

motion    was    served   on   Cruz.      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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