                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4161


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SERGIO GARZA, a/k/a Anatolio Balderas-Sanchez,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cr-00076-BR-1)


Submitted:   January 19, 2016             Decided:   March 8, 2016


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


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P.   May-Parker,   Eleanor  Morales,   Assistant  United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Sergio       Garza       pleaded         guilty       to   illegally       reentering       the

United       States       after       having      been        removed    following        a   felony

conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012).

The     district           court          sentenced          Garza    within       the     advisory

Guidelines          range       to    27       months    of       imprisonment      and       he   now

appeals.       For the reasons that follow, we affirm the judgment.

       On appeal, Garza challenges the procedural reasonableness

of    the    sentence.               We    review    a       sentence    for      reasonableness,

applying       an    abuse       of       discretion          standard.        Gall      v.    United

States,      552     U.S.       38,       51    (2007);       see    also   United       States     v.

Layton, 564 F.3d 330, 335 (4th Cir. 2009).                                     In so doing, we

first examine the sentence for “significant procedural error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to     consider          the    [18        U.S.C.]       §     3553(a)      [(2012)]       factors,

selecting       a        sentence         based     on   clearly        erroneous        facts,     or

failing to adequately explain the chosen sentence.”                                      Gall, 552

U.S.    at    51.          In   conducting          an       individualized        assessment       at

sentencing,          a     district         court     must        respond    to    the    parties’

nonfrivolous arguments for imposing a sentence outside of the

Guidelines range.                See United States v. Carter, 564 F.3d 325,

328, 330 (4th Cir. 2009).



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     We then “‘consider the substantive reasonableness of the

sentence imposed.’”           United States v. Evans, 526 F.3d 155, 161

(4th Cir. 2008) (quoting Gall, 552 U.S. at 51).                       We will presume

on appeal that a sentence within a properly calculated advisory

Guidelines range is reasonable.                 United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551

U.S. 338, 346-56 (2007) (upholding presumption of reasonableness

for within-Guidelines sentence).

     Garza argues that the district court erroneously determined

that it could not depart or vary from the Guidelines range based

on the unavailability of a fast track, or early disposition,

program.       Such    programs       provide    for    a     departure     in    illegal

reentry cases if the defendant admitted guilt in a timely manner

and the government, having determined that such a departure is

warranted,      moves       for   a    departure.           See      U.S.     Sentencing

Guidelines     Manual       § 5K3.1   (2015).         Here,    the    court      erred   in

determining that an early disposition program was not available

in the district of the prosecution.                     However, that error was

harmless as the Government did not move for a departure pursuant

to § 5K3.1 of the Guidelines.             Without such a motion, the court

could   not    have    departed       under    that    section.        Therefore,        we

conclude      that    the     sentence    is    procedurally          reasonable;        we

further conclude that the sentence is substantively reasonable.



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     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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