                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5057


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SINCLAIR ARCHIBALD MYERS, a/k/a Lyndon Francis Lyndon, a/k/a
Elijah Josiah Middleton, a/k/a Frances Lyndon, a/k/a Stephen
Calvin Joseph,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:10-cr-00028-JRS-1)


Submitted:   June 25, 2012                 Decided:   July 16, 2012


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.     Stephen David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Sinclair Archibald Myers pled guilty to one count of

illegal reentry after deportation for an aggravated felony, in

violation of 8 U.S.C. § 1326(a), (b)(2) (2006).                             On appeal of

his eighty-four-month sentence, Myers claimed his sentence was

procedurally      and     substantively           unreasonable.            Expressing     no

opinion    as     to     whether     Myers’         sentence        was    substantively

reasonable, we vacated the judgment and remanded to the district

court for consideration of Myers’ policy arguments in mitigation

of the sixteen-level enhancement.                    United States v. Myers, 442

F. App’x 763 (4th Cir. 2011) (No. 10-4819).                               On remand, the

district     court,      after      expressly        considering          Myers’     policy

arguments,      again    imposed     an   eighty-four-month               sentence.       On

appeal,    counsel       has    filed     a       brief    pursuant       to    Anders    v.

California, 386 U.S. 738 (1967), asserting that, in counsel’s

opinion,     there      are    no   meritorious           grounds    for       appeal,   but

raising the issue of whether Myers’ sentence is substantively

reasonable.      Myers was notified of his right to file a pro se

supplemental brief but has not done so.                    We affirm.

           We review a sentence for reasonableness, applying an

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

38, 51 (2007); 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

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(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)         [(2006)]    factors,        selecting      a    sentence       based    on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.”            Gall, 552 U.S. at 51.               We then consider the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                     United States v. Mendoza-

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).                         If the sentence is

within      the    Guidelines    range,        we   presume      on   appeal     that    the

sentence is reasonable.            United States v. Go, 517 F.3d 216, 218

(4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56

(2007) (permitting appellate presumption of reasonableness for

within-Guidelines sentence).

              On    appeal,     Myers    argues       that    his     within–Guidelines

sentence      is    substantively        unreasonable         because      the    district

court rejected his argument that the illegal reentry Guideline,

U.S.    Sentencing       Guidelines       Manual       §   2L1.2,       lacks    empirical

support for the sixteen-level increase and the offense levels

set    by   the     Guideline    do     not    rationally        relate    in    terms   of

seriousness        to   other   offenses.           However,      the    presumption      of

reasonableness is not overcome simply because the district court

failed to reject the policy of a Guideline.                           See United States

v.    Mondragon–Santiago,        564     F.3d       357,   365–67      (5th     Cir.   2009)

(explaining         that,    although         “district      courts       certainly      may

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disagree with the Guidelines for policy reasons and may adjust a

sentence   accordingly[,]            .    .   .       if    they       do    not,    we    will    not

second-guess         their     decisions          under          a    more    lenient      standard

simply    because       the       particular          Guideline         is    not     empirically-

based”).        On    remand,       the   district           court          acknowledged      Myers’

arguments regarding USSG § 2L1.2 and its ability to vary from

the Guidelines range based on those arguments, but it ultimately

rejected those arguments.                 We conclude that Myers has not shown

his sentence is unreasonable in this regard.                                       Furthermore, in

fashioning       Myers’       sentence,       the       district            court    set    forth   a

sufficiently         developed        rationale             to       support        the    sentence,

specifically addressing Myers’ arguments for a lower sentence.

We conclude that Myers’ sentence is reasonable.

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.        We    therefore       affirm       the       district         court’s       judgment.

This court requires that counsel inform Myers, in writing, of

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

further review.         If Myers 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 Myers.              We dispense with oral argument because the

facts    and    legal       contentions       are          adequately         presented      in    the

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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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