                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4368


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LUCAS REYES HERNANDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:13-cr-00013-FDW-1)


Submitted:   January 28, 2015             Decided:   February 6, 2015


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ross Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Lucas Reyes Hernandez appeals his sentence following a

guilty    plea     to    illegal       reentry       after    having     been   deported

subsequent to an aggravated felony conviction, in violation of 8

U.S.C. § 1326(a), (b)(2) (2012).                     The district court sentenced

him to a forty-six month term of imprisonment.                         Hernandez argues

that the district court’s denial of his request for a downward

variance was based upon clearly erroneous factual findings and

that the sentence imposed is substantively unreasonable.                                    We

affirm.

             In resolving a challenge to a defendant’s sentence, we

begin by determining whether “the district court committed [a]

significant procedural error, such as . . . selecting a sentence

based on clearly erroneous facts.”                       Gall v. United States, 552

U.S.   38,    51    (2007).          In    denying       Hernandez’s    request       for    a

downward     variance,         the    district      court    stated     that    Hernandez

could have been charged with a drug offense in federal court

despite    having       been    convicted      of    a    similar    offense    in    state

court.       Hernandez      argues        Justice    Department       policy    does       not

permit federal prosecutors to bring charges based on conduct

that has already been prosecuted in state court unless the state

prosecution        leaves      “a     substantial        federal     interest     .    .    .

demonstrably       unvindicated.”            U.S.    Att’ys’       Manual   § 9-2.031(A)

(2009).        However,         the       record     does    not     indicate     whether

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Hernandez’s state prosecution involved drug quantities such that

his     state   sentence       left    a       substantial      federal    interest

demonstrably unvindicated.            Moreover, the district court stated

several other reasons for denying a variance.                         Therefore, we

conclude that the district court did not select its sentence

based on clearly erroneous facts and a significant procedural

error did not result.

            Finding no procedural error, we review the district

court’s sentence for substantive reasonableness.                   Gall, 552 U.S.

at 51.     We conduct this review under a “deferential abuse-of-

discretion      standard,”      considering         “the     totality      of     the

circumstances.”        Id. at 41, 51.          “Any sentence that is within or

below a properly calculated Guidelines range is presumptively

reasonable,”     and    this   “presumption        can   only    be    rebutted   by

showing that the sentence is unreasonable when measured against

the 18 U.S.C. § 3553(a) [(2012)] factors.”                      United States v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.

421 (2014).      We find that Hernandez has failed to rebut the

presumption that his within-Guidelines sentence is substantively

reasonable.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately        presented   in    the    materials



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before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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