                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4163


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BENITO HERNANDEZ HERNANDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00023-MR-1)


Submitted:   October 31, 2011               Decided:   November 30, 2011


Before WILKINSON, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Angela Parrott, Acting Executive Director, Matthew Segal,
Assistant Federal Defender, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Benito        Hernandez      Hernandez           pled   guilty      to   illegally

reentering the United States, after being deported in violation

of 8 U.S.C. § 1326(a) (2006), and was sentenced to 120 months of

imprisonment.          On appeal Hernandez raises three issues, whether:

(1)   his   sentence          was     unreasonable;           (2)   the     district     court

plainly erred by failing to comply with 18 U.S.C.A. § 3006A

(West Supp. 2011); and (3) his sentence exceeded the maximum

sentence authorized by the indictment and his guilty plea under

§ 1326(a), in violation of the Fifth and Sixth Amendments.                                   For

the reasons that follow, we affirm.

            We review a sentence imposed by a district court for

reasonableness under a deferential abuse of discretion standard.

Gall v. United States, 552 U.S. 38, 46 (2007); United States v.

Lynn, 592 F.3d 572, 578–79 (4th Cir. 2010) (abuse of discretion

standard of review applicable when defendant properly preserves

a   claim   of    sentencing         error    in       district     court    “[b]y     drawing

arguments      from     [18     U.S.C.]       §       3553   [(2006)]     for    a    sentence

different      than     the     one    ultimately            imposed”).         We   begin    by

reviewing        the    sentence        for        significant       procedural         error,

including such errors as “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a   sentence      based    on       clearly       erroneous      facts,     or   failing      to

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adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines.”                   Gall, 552 U.S. at 51.

            We hold that the district court reasonably based its

upward variance from an advisory Sentencing Guidelines range of

51-63 months on a variety of § 3553(a) factors and adequately

explained its decision to do so.                  The district court was faced

with a recalcitrant defendant who had been deported five times

in a two-year period and despite his young age had attained the

highest criminal history category.

            Because        Hernandez     failed     to    object    to   the      district

court’s     ruling    that        he    reimburse        the    Government     for    his

appointed counsel, under 18 U.S.C.A. § 3006A, we only review

that matter for plain error.              Although the district court failed

to make the financial findings necessary to order reimbursement,

Hernandez    has     not    met    the   demanding        burden   of    showing     that

decision was plain error.               See United States v. Olano, 507 U.S.

725, 732-35 (1993) (providing test for plain error; noting that

appellants bear the burden of proof with respect to prejudice of

their rights).

            Hernandez concedes that his last argument is barred by

the   Supreme      Court’s     opinion      in    Almendarez-Torres          v.    United

States, 523 U.S. 224, 233-35 (1998).                       Accordingly, we affirm

Hernandez’s     conviction        and    sentence.         We    dispense    with    oral

argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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