                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4057


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HECTOR RAMIREZ-CORTEZ,   a/k/a   Hector    Ramirez,    a/k/a   Juan
Gonzalez-Martinez,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00161-TDS-1)


Submitted:   July 28, 2014                  Decided:    August 4, 2014


Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant   Federal   Public   Defender,  Winston-Salem,  North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Kyle D. Pousson, Special Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Hector          Ramirez-Cortez              pleaded    guilty,       pursuant       to    a

written    plea         agreement,         to    illegally          re-entering          the     United

States    as       an    aggravated           felon,         in     violation       of     8     U.S.C.

§ 1326(a), (b)(2) (2012), and received a sentence of forty-two

months’ imprisonment.                 On appeal, Ramirez-Cortez challenges the

reasonableness of his sentence.                        We affirm.

              We    review        a     sentence           for     reasonableness          “under       a

deferential         abuse-of-discretion                    standard.”            Gall    v.      United

States,    552      U.S.        38,     41,      51       (2007).          Our     review       entails

appellate consideration of both the procedural and substantive

reasonableness           of    the    sentence.              Id.    at    51.       In    evaluating

procedural         reasonableness,              we     consider          whether    the        district

court properly considered the advisory nature of the Sentencing

Guidelines,         correctly         calculated             the     defendant’s         Guidelines

range,    gave          the     parties         an        opportunity       to     argue       for     an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)

factors, and sufficiently explained the selected sentence.                                           Id.

at   49-51.         If    there       is   no        significant         procedural       error,       we

review    the      sentence       for      substantive            reasonableness,          “tak[ing]

into account the totality of the circumstances.”                                   Id. at 51.          We

presume    a       sentence       within         or        below     a    properly       calculated

Guidelines range to be substantively reasonable.                                    United States

v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

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            Ramirez-Cortez             asserts       that      the    district        court

procedurally erred in determining that it lacked authority to

vary downward on the basis of the sentencing disparities that

result    from    selected      application         of   the    fast-track      program. ∗

Ramirez-Cortez       contends      that       the     district       court    improperly

concluded that it was bound by this court’s decision in United

States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006), because the

Supreme    Court’s     subsequent         decision       in    Kimbrough      v.     United

States, 552 U.S. 85 (2007) (holding that sentencing courts may

“vary . . . based solely on policy considerations, including

disagreements with the Guidelines”), allows a district court to

consider such a sentencing disparity.

            This     court      held    in    Perez-Pena       that    any    sentencing

disparity        between     defendants            receiving     fast        track    plea

agreements and those who do not is “warranted as a matter of

law,” because such disparities are sanctioned by Congress and

the Sentencing Commission.               453 F.3d at 243 (internal quotation

marks     omitted).        We     have       not    revisited        Perez-Pena      in   a

     ∗
       “‘Fast-tracking’ refers to a procedure that originated in
states along the United States–Mexico border, where district
courts experienced high caseloads as a result of immigration
violations.”   United States v. Perez–Pena, 453 F.3d 236, 238
(4th Cir. 2006).    In conformity with the fast-track practice,
prosecutors seek to obtain pre-indictment guilty pleas by
offering to move for a downward departure under U.S. Sentencing
Guidelines Manual § 5K3.1, p.s.




                                             3
published, precedential decision since Kimbrough, and Perez-Pena

remains controlling in this circuit.

            Even if the district court had authority to consider

this     sentencing   disparity,      however,    we     conclude    that    its

reliance    on   Perez-Pena    was    harmless.        Under    harmless    error

review, we will not reverse the court’s judgment when the error

“did not have a substantial and injurious effect or influence on

the result.”     See United States v. Lynn, 592 F.3d 572, 585 (4th

Cir.     2010)   (internal    quotation     marks      omitted).       As    the

Government correctly asserts, the district court in this case

specifically stated that, even if it had authority to do so, it

would not grant a downward variance related to the lack of a

fast-track plea offer in Ramirez-Cortez’s case.

            Ramirez-Cortez     also     asserts   that    his    sentence    was

substantively unreasonable because it was greater than necessary

to accomplish the goals of 18 U.S.C. § 3553(a).                   The district

court,    however,    fully   considered    Ramirez-Cortez’s        cooperation

with federal agents, his employment history, and the support of

his family in granting a downward variance and imposing a forty-

two-month sentence.       Because Ramirez-Cortez does not offer any

additional factors to rebut the appellate presumption afforded

his below-Guidelines sentence, we conclude that his sentence is

substantively reasonable.            See Susi, 674 F.3d at 289; United

States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).

                                        4
           Accordingly,    we   affirm   the   criminal   judgment.      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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