                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-5078



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MAURILIO PRIETO-RUBI, Maurilio Prieto-Rubio,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:06-cr-00017-nkm-1)


Submitted:   September 29, 2008           Decided:   January 15, 2009


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marc Seguinót, SEGUINÓT & ASSOCIATES, PC, McLean, Virginia, for
Appellant. Julia C. Dudley, Acting United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Maurilio Prieto-Rubi appeals his conviction and 194-month

sentence for conspiring to distribute fifty grams or more of

methamphetamine,    in   violation       of    21    U.S.C.   §   846    (2000).

Prieto-Rubi contends the court erred in accepting his guilty plea

without first ascertaining whether he had been advised of his right

to contact the Mexican consulate under Article 36 of the Vienna

Convention on Consular Relations.             He also contends the district

court erred in refusing to consider his status as a deportable

alien as a basis for varying from the Sentencing Guidelines range.

We affirm.

          Prieto-Rubi asks this court to vacate his guilty plea and

remand for an “evidentiary hearing to determine whether the failure

of [notification] under Article 36” violated his rights.                 Because

Prieto-Rubi did not raise this issue below, his claim is reviewed

for plain error.     See Fed. R. Crim. P. 52(b).              Prieto-Rubi must

show: (1) there was error; (2) the error was plain; and (3) the

error affected his substantial rights. United States v. Olano, 507

U.S. 725, 732-34 (1993).       Even if all three of these elements are

present, we may not correct the error unless it “seriously affects

the   fairness,    integrity    or   public         reputation    of    judicial

proceedings.”     Id. at 736 (internal quotation marks, alterations

and citation omitted).




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            Article 36(b) of the Vienna Convention provides that upon

arrest, a foreign national has the right to contact the consular

post of his home country, and that the arresting authorities must

inform the detainee of that right.             In Sanchez-Llamas v. Oregon,

548 U.S. 331, 343, 350 (2006), the Supreme Court held that,

assuming    the   Vienna   Convention       creates   enforceable     individual

rights, suppression of incriminating evidence via the exclusionary

rule is not an appropriate remedy for its violation.                    Just as

violation of Article 36 does not warrant exclusion of incriminating

evidence, it does not require vacating Prieto-Rubi’s conviction.

See Medellin v. Texas, 128 S. Ct. 1346, 1360-61 (holding treaties

without    self-executing    provisions       do   not   constitute    “directly

enforceable federal law”).*

            Prieto-Rubi also argues that his status as a deportable

alien is a permissible grounds for variance and the district court

erred in its refusal to consider varying the sentence on this

basis.     Our review of the record leads us to conclude, however,




     *
      Prieto-Rubi also refers to the decision of the International
Court of Justice (“ICJ”) in the Case Concerning Avena and other
Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. 12 (Mar. 31), in
which the ICJ held that the United States had violated the Vienna
Convention by failing to inform 51 named Mexican nationals of their
Vienna Convention rights and that those individuals were entitled
to review and reconsideration of their U.S. state-court
convictions. The international court’s decision in the Avena case
does not, however, require reversal of Prieto-Rubi’s conviction,
because the ICJ’s decision is not “directly enforceable federal
law.” Medellin, 128 S. Ct. at 1353.

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that   the    court    did     consider,         but      was    unpersuaded,         that   the

deportation issue warranted a departure.

              In any event, Prieto-Rubi cannot establish that his

sentence is unreasonable.                  This court will affirm a sentence so

long as it is within the statutorily prescribed range and is

reasonable.        United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir.     2005).        We    review         a    district        court’s        sentence     for

reasonableness under an abuse-of-discretion standard.                                   Gall v.

United    States,      128   S.       Ct.    586,     597    (2007);      see    also    United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                                         When

sentencing     a    defendant,         a    district        court     must:     (1)    properly

calculate the Guidelines range; (2) determine whether a sentence

within that range serves the factors set out in 18 U.S.C.A.

§   3553(a)    (West    2000      &    Supp.     2008);         (3)   implement       mandatory

statutory limitations; and (4) explain its reasons for selecting a

sentence.      Pauley, 511 F.3d at 473.                      “[A] sentence within the

proper advisory Guidelines range is presumptively reasonable.”

United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see

Rita   v.    United     States,        127      S.    Ct.   2456,      2462,     2465    (2007)

(permitting        appellate          courts         to   afford      a    presumption        of

reasonableness to a within-Guidelines sentence).                                Prieto-Rubi’s

194-month sentence is within the Guidelines range and below the

statutory maximum. Neither Prieto-Rubi nor the record suggests any




                                                 4
information    to   rebut   the   presumption   that   his   sentence   was

reasonable.

            Accordingly,    we    affirm   Prieto-Rubi’s   conviction   and

sentence.     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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