                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5005


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD OLISLAGER,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00030-BO-1)


Submitted:   June 24, 2011                 Decided:   July 21, 2011


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

            In    a   prior        appeal,       we     remanded      this       case    for

resentencing, having determined that the district court failed

to provide an individualized explanation for its determination

that a 235-month sentence was an appropriate sentence to impose

on    Richard    Olislager    following         his    guilty       plea   to    receiving

child pornography in violation of 18 U.S.C. § 2252(a) (2006).

On remand, the district court again sentenced Olislager to 235

months, the bottom of the properly calculated advisory guideline

range.    Olislager again appeals.               His attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that, in his view, there are no meritorious issues for appeal,

but questioning whether the sentence imposed was unreasonable

because    the     district        court    did       not    consider      all     of    the

sentencing       factors,     see     18     U.S.C.         § 3553(a)      (2006),       and

asserting that the Government, by explaining the error that led

to its agreement to make a sentencing recommendation, undermined

the    recommendation        and     thus       breached      the     plea      agreement.

Olislager filed a pro se brief challenging two enhancements to

his offense level determined under the Sentencing Guidelines.

Finding no error, we affirm Olislager’s sentence.

            A    sentence    is     reviewed      for       reasonableness       under    an

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

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

                                            2
procedural and substantive reasonableness of a sentence. Id.;

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

After determining whether the district court properly calculated

the defendant’s advisory guideline range, this court must decide

whether the district court considered the § 3553(a) factors,

analyzed   the     arguments       presented    by     the   parties,     and

sufficiently explained the selected sentence.            Gall, 552 U.S. at

51; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (holding that, while the “individualized assessment need

not be elaborate or lengthy, . . . it must provide a rationale

tailored to the particular case . . . and [be] adequate to

permit meaningful appellate review”).           If the sentence is free

of significant procedural error, the appellate court reviews the

substantive reasonableness of the sentence.               United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

           In    his   pro   se   brief,   Olislager    contends   that   his

sentence is unreasonable because his offense level was enhanced

based on the use of a computer for possession, transmission,

receipt or distribution of materials, and also for a pattern of

activity that involved sexual abuse or exploitation of a minor,

relying on Olislager’s prior conviction and pending state court

charges, that were subsequently dismissed.             In Olislager’s prior

appeal, our Anders review included a review of the determination

of Olislager’s advisory Guidelines range, and we found no error

                                      3
in the application of the enhancement Olislager now challenges.

Olislager’s challenges to the sentencing enhancements are barred

from this court’s consideration, under the mandate rule.                      United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the

mandate    rule   “forecloses    relitigation          of   issues    expressly     or

impliedly decided by the appellate court[,]” as well as “issues

decided by the district court but foregone on appeal”).

            Counsel     contends     that         Olislager’s         sentence      is

procedurally      unreasonable   because         the   district      court   did   not

consider all of the § 3553(a) factors, especially, the history

and   personal     characteristics      of    the      Defendant.        While     the

sentencing     court   is    required       to     consider     the     factors     in

§ 3553(a), it need not robotically tick through each subsection

of § 3553(a).       See United States v. Johnson, 445 F.3d 339, 345

(4th Cir. 2006).        Here, the court noted that Olislager has a

history of predatory sexual conduct and that he is a recidivist.

In light of the likelihood of future conduct and the need to

protect the public, the court declined Olislager’s request and

the   Government’s     recommendation         for      a    sentence     below     the

advisory     Guidelines     range.      The       court     noted     that   lenient

treatment was not warranted in light of the seriousness of the

offense and the danger to the public.                  By this explanation, we

are satisfied that the district court has a “reasoned basis for

exercising [its] own legal decisionmaking authority.”                         United

                                        4
States     v.    Engle,      592     F.3d      495,       500   (4th     Cir.)      (internal

quotation omitted), cert. denied, 131 S. Ct. 165 (2010).

               We therefore conclude that the district court did not

abuse    its     discretion        in    imposing         the   235-month     sentence—the

bottom of the advisory Guidelines range.                          See Gall, 552 U.S. at

41; United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007)

(applying       appellate      presumption           of    reasonableness          to    within

guidelines sentence).

               Olislager also contends that the Government breached

the plea agreement by making the recommendation of a 180-month

sentence,       as    it   agreed       to   do,   but     also      explaining     that    the

agreement to make the recommendation was inadvertently included

in the version of the plea agreement that was signed and filed

with the court.             The Supreme Court has held that a criminal

defendant has no right to an “enthusiastic” recommendation by

the prosecutor in order to comply with the term in the plea

agreement        requiring         the       prosecutor         to    make    a         specific

recommendation.            United States v. Benchimol, 471 U.S. 453, 455-

56 (1985); see United States v. Coleman, 208 F.3d 786, 792 (9th

Cir.     2000)       (concluding        that    no    breach         occurs   as    long     as

Government’s recommendation (“however grudgingly”) occurs before

sentencing); United States v. Badaracco, 954 F.2d 928, 941 (3d

Cir. 1992) (“government need not endorse the terms of its plea



                                               5
agreements        enthusiastically”)              (internal        quotation            marks

omitted).

             Olislager      failed     to    establish          that    the      Government

breached    its    plea     agreement.           Under   the     terms      of    the   plea

agreement, the Government was obligated to recommend a sentence

of   180   months.        The    Government      satisfied       this    obligation       by

making     that     recommendation          to     the     court       at     sentencing.

Although, in response to inquiry by the court, the Government

explained that the prosecutor signed and presented the wrong

plea     agreement    and        therefore       erred     by     agreeing        to    this

recommendation, it nonetheless made the recommendation of a 180-

month sentence to the sentencing court, and therefore fulfilled

its obligation.       The Government’s explanation did not result in

a breach of the plea agreement.

             In accordance with Anders, we have reviewed the entire

relevant to this appeal and have found no meritorious issues.

This court requires that counsel inform Olislager, in writing,

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

for further review.             If Olislager 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 representation.               Counsel’s motion must state that

a copy thereof was served on Olislager.                     We dispense with oral

argument because the facts and legal contentions are adequately

                                            6
presented in the materials before the court and argument would

not aid the decisional process.



                                                      AFFIRMED




                                  7
