                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4419


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

PEDRO ANTONIO ESCOBAR−MARROQUIN,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virgina, at Richmond. John A. Gibney, Jr., District
Judge. (3:11-cr-00305-JAG-1)


Argued:   March 22, 2013                      Decided:   May 8, 2013


Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.      Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.    Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Pedro      Antonio    Escobar-Marroquin                 pled   guilty        to     illegal

reentry    and       received    a   60-month       term       of    imprisonment,             which

represented       a     14-month     variance       above        the    top       end     of    the

applicable sentencing range.                  He now challenges the substantive

reasonableness of his sentence.                We affirm.

                                              I.

        The defendant is a Salvadoran citizen who, according to the

parties’       agreed    upon    Statement         of    Facts,      entered        the    United

States illegally for the first time in 1987. *                           Some time around

1988,     he   returned     to     El   Salvador         to    marry     and      subsequently

reentered       the     United     States.          In    2009,        the    defendant         was

convicted in state court of possession with intent to distribute

cocaine.        He    served     approximately           six    months       of   a     five-year

sentence       and    was   removed      in    October          2009.         The       defendant

reentered the United States in January or February 2010, was

arrested in August 2010 for possession with intent to distribute

cocaine, and was convicted in state court and sentenced to seven

years’ imprisonment.             While serving that sentence, the defendant

was     federally       indicted        for    illegal          reentry        following         an

      *
          We note that there is also evidence in the record that
the defendant’s first illegal entry into the United States may
have been in 1983.     The exact date on which the defendant
initially entered the United States is not relevant to our
disposition on appeal.



                                              2
aggravated       felony,   in     violation      of   8    U.S.C.   §   1326.      He

subsequently pled guilty to the illegal reentry charge.

     According       to     the      presentence          report    (“PSR”),      the

defendant’s offense level of 17 and criminal history category of

IV resulted in an advisory guideline range of 37 to 46 months’

imprisonment.        At sentencing, the defendant sought a downward

variance for three reasons.           He first emphasized that the MS-13

gang in El Salvador was demanding payments for the protection of

his family; that he worked in the United States to satisfy these

extortion demands and to protect his wife, children, and family

members in El Salvador; and that the MS-13 gang had already

killed his uncle and father because he was unable to pay them

enough money.        Second, he noted that he rehabilitated himself

while in prison by completing a Bible study course and getting

baptized and by graduating from a drug treatment program.                         And

finally,    he    argued    that    his   2009    state     drug    conviction    was

unfairly counted three separate times in the calculation of his

offense level under the guidelines.

      The government sought a 92-month sentence, arguing that

the defendant reentered the United States shortly after he was

removed    and    began    selling    drugs   again.         The    district    court

sentenced the defendant to 60 months’ imprisonment, a 14-month

variance above the guidelines range.



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                                         II.

       The    defendant       challenges        the        reasonableness      of    his

sentence,      which     we    review    under        “a     deferential     abuse-of-

discretion standard.”          United States v. Rivera-Santana, 668 F.3d

95, 100 (4th Cir. 2012) (internal quotation marks omitted).                           We

normally      begin    our    evaluation       by    considering      the    procedural

reasonableness of the sentence, see United States v. Morace, 594

F.3d   340,    345     (4th   Cir.   2010),         but    the   defendant    does   not

challenge      the     procedural       reasonableness           of   his     sentence.

Rather, the defendant’s sole contention on appeal is that his

sentence was substantively unreasonable.

       With    regard    to    the   substantive            reasonableness     of    the

defendant’s sentence,

       we must determine . . . whether the District Judge
       abused his discretion in determining that the [18
       U.S.C. §] 3553(a) factors supported the sentence and
       justified a substantial deviation from the Guidelines
       range. We also must take into account the totality of
       the   circumstances,  including   the   extent  of  any
       variance from the Guidelines range.     If the sentence
       is outside the Guidelines range, the court may not
       apply a presumption of unreasonableness.        It may
       consider the extent of the deviation, but must give
       due deference to the district court’s decision that
       the [18 U.S.C. §] 3553(a) factors, on a whole, justify
       the extent of the variance.        The fact that the
       appellate court might reasonably have concluded that a
       different sentence was appropriate is insufficient to
       justify reversal of the district court.




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United    States       v.   Diosdado-Star,         630     F.3d    359,    366     (4th    Cir.

2011)    (alterations,           citations,        and    internal        quotation       marks

omitted).

                                              A.

       The defendant’s first argument is that the district court

abused its discretion by placing too much weight on his criminal

history.        Other than the illegal reentry underlying this case,

the defendant’s criminal history consists of a conviction for

“Profanely      Curse/Public        Intoxication,”          a     traffic    offense,       and

two state convictions for possession with intent to distribute

cocaine.         The    defendant       emphasizes         that     each    drug     offense

involved less than one gram, and he argues that these offenses

were    fully    taken      into    account        in     calculating       his    guideline

range.

        The district court did rely on the defendant’s criminal

history in imposing an above-guideline sentence, but the court

relied on other factors as well.                   Consistent with its obligation

to impose a sentence in accordance with the factors set forth at

18     U.S.C.     §     3553(a),        the       court     noted     the        defendant’s

circumstances and lack of respect for the law by emphasizing

that    he   returned       to    the   United       States       shortly     after       being

removed in order to sell cocaine.                    The court also mentioned its

view    that    the     defendant’s      “histrionic[]”            conduct        before    the

court, J.A. 120, in which he begged for mercy from his hands and

                                              5
knees, was an attempt to manipulate the court.                   And finally, the

court discussed the seriousness of the offense and the need to

provide     deterrence    given    that       the   defendant      had   twice    been

caught    selling   cocaine    in    the      United    States     and    that    drug

dealing is not a victimless crime.                  We are satisfied that the

court’s consideration and application of the § 3553(a) factors

justified the variance in this case.                Accordingly, the court did

not   abuse   its   discretion      by   placing      too   much    weight   on    the

defendant’s criminal history.

                                         B.

      The     defendant    also     contends        that    his      sentence      was

substantively unreasonable because the district court relied on

several factually inaccurate assertions made by the government.

In its sentencing memorandum, the government stated that the

defendant “began selling heroin and then later cocaine.”                          J.A.

46.   But there is no evidence in the record that the defendant

ever sold heroin.         Similarly, the government asserted that the

defendant had “12 years of schooling.”                 J.A. 54.          But he only

underwent four years of education.

      At oral argument before us, the attorney for the government

apologized profusely for these factual inaccuracies, explaining

that he used a brief from an unrelated case as the basis for his

sentencing     memorandum     in     this      case    and,     because      he   was

overworked at the time, he simply did a poor job of editing.                        We

                                          6
appreciate the government’s candor and accept that the inclusion

of these statements was an oversight.                   Nonetheless, counsel for

the government is an officer of the court who is expected to be

truthful and accurate in all representations made to the court.

We trust that the government will take steps to ensure that

problems of this nature will not recur.

     While we do not condone the government’s carelessness, its

misstatements would be prejudicial only insofar as the district

court relied on them in imposing the sentence.                       The defendant

contends   that       the   “upward      variance        sentence”    was   imposed

“perhaps in partial reliance on one or more of these mistaken

assertions.”      App.      Brief   at    8     n.2.      We   disagree.     Having

reviewed the sentencing transcript and the PSR which the court

adopted,   we   are    satisfied    that      the      sentence   imposed   was   not

affected by the government’s misstatements.

                                         III.

     For the foregoing reasons, we affirm.



                                                                            AFFIRMED




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