                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4607


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICARDO ELVIN MARTINEZ, a/k/a Ricardo Martinez-Selvin,
a/k/a Ricardo Martinez-Servin, a/k/a Jose Lopez Diaz,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:10-cr-00164-RGD-DEM-1)


Submitted:   December 14, 2011            Decided:   January 4, 2012


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant.   Neil H. MacBride, United States Attorney, Katherine
Lee Martin, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ricardo       Elvin      Martinez        pled     guilty     to     illegally

reentering        the    United       States        after     having     been     deported

subsequent    to     a    felony   conviction,         in    violation     of    8    U.S.C.

§ 1326(a), (b)(1) (2006).               Martinez received a within-Guidelines

ninety-month       sentence.        On       appeal,    Martinez       argues    that      his

sentence     is    substantively        unreasonable.         Finding     no    error,      we

affirm.

             We review a sentence imposed by a district court for

reasonableness,          applying        a     deferential       abuse-of-discretion

standard.         Gall v. United States, 552 U.S. 38, 46, 51 (2007).

Such review requires consideration of both the procedural and

substantive reasonableness of a sentence.                      Id. at 41; see United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                              Martinez

does   not        challenge     the      procedural          reasonableness          of    his

sentence.     See Edwards v. City of Goldsboro, 178 F.3d 231, 241

n.6 (4th Cir. 1999) (noting that party’s failure to raise issue

in opening brief results in abandonment of issue).

             We     examine       the     substantive         reasonableness          of     a

sentence     under       the   totality        of    the     circumstances.           United

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

accords a sentence within a properly calculated Guidelines range

an appellate presumption of reasonableness.                        United States v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).                                  Such a

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presumption is rebutted only by showing “that the sentence is

unreasonable         when    measured     against          the    [18     U.S.C.    §   3553(a)

(2006)] factors.”            United States v. Montes-Pineda, 445 F.3d 375,

379 (4th Cir. 2006) (internal quotation marks omitted).

            Martinez          argues    that         his    sentence        should      not     be

afforded        a     presumption         of         reasonableness           because          the

sixteen-level            enhancement      he         received           pursuant     to       U.S.

Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A) (2010) is

not   based         on      the   Sentencing          Commission’s           characteristic

institutional role of empirical study.                           This     argument      amounts

to a policy attack on USSG § 2L1.2(b)(1)(A), and we conclude it

is without merit. *            Accord United States v. Mondragon-Santiago,

564 F.3d 357, 366-67 (5th Cir. 2009) (recognizing that appellate

courts    are       “not    require[d     to]       discard[]       the    presumption         [of

reasonableness] for sentences based on non-empirically-grounded

Guidelines” and applying presumption accordingly).

            Martinez also argues that his sentence, driven by the

sixteen-level              enhancement,         is         unreasonably            large       and

over-punishes his conduct.                 However, it is apparent from the

record that the district court considered Martinez’s argument


      *
        This court previously has rejected this argument in
several unpublished opinions.     See, e.g., United States v.
Mendoza-Mendoza, 413 F. App’x 600, 602 (4th Cir.) (No. 10-4556)
(collecting cases), cert. denied, 131 S. Ct. 3078 (2011).



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for    a    downward    departure     and    had      a   reasoned   basis      for     its

decision      to   impose    a   within-Guidelines          sentence      in    light    of

Martinez’s extensive criminal history and its reasoned analysis

of    the    relevant     § 3553(a)    factors.            We   conclude       that     the

district      court    did   not    abuse       its   discretion     in    imposing      a

within-Guidelines sentence, and we hold that the sentence is

substantively reasonable.

              Accordingly, we affirm the district court’s judgment.

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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