                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4137


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOEL ADOLFO BORJAS-HERNANDEZ, a/k/a Jose Hernandez Salazar,
a/k/a Carlos,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:09-cr-00163-1)


Submitted:   October 5, 2011                 Decided:   October 25, 2011


Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph R. Conte, LAW OFFICES OF J. R. CONTE, P.L.L.C.,
Washington, D.C., for Appellant.    R. Booth Goodwin, II, United
States Attorney, Joshua C. Hanks, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Joel        Adolfo   Borjas-Hernandez               pleaded      guilty      to    an

information charging him with conspiracy to distribute heroin,

in violation of 21 U.S.C. § 846 (2006).                                   The district court

sentenced Borjas-Hernandez to 292 months of imprisonment and he

now appeals.           Finding no error, we affirm.

                Borjas-Hernandez          argues      on       appeal     that      the    sentence

imposed         by     the     district    court          is     both      procedurally           and

substantively              unreasonable.             We        review      a     sentence         for

reasonableness,              applying     an    abuse          of    discretion           standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,

130   S.    Ct.       290    (2009).      In    so    doing,         we   first       examine     the

sentence for “significant procedural error,” including “failing

to calculate (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.                     Finally,

we then “consider the substantive reasonableness of the sentence

imposed.”            Id.     We presume on appeal that a sentence within a

properly        calculated       advisory       Guidelines           range     is     reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see



                                                2
Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding

presumption of reasonableness for within—Guidelines sentence).

              Borjas-Hernandez first argues that the district court

erred    in    calculating          the   advisory       Guidelines    range.       In

reviewing       the        district       court’s       calculations     under     the

Guidelines, “we review the district court’s legal conclusions de

novo    and    its    factual       findings      for    clear   error.”         United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010) (internal

quotation marks, citation, and alteration omitted).                           We will

“find clear error only if, on the entire evidence, we are left

with the definite and firm conviction that a mistake has been

committed.”      Id. at 631 (internal quotation marks and citation

omitted).

              Under    the     Sentencing        Guidelines,     the   base    offense

level applicable to the offense of conviction is thirty-eight,

if “death or serious bodily injury resulted from the use of the

substance.”          See    U.S.    Sentencing      Guidelines     Manual     (“USSG”)

§ 2D1.1(a)(2) (2010).              In addition, a defendant is subject to a

four-level enhancement in the offense level if the defendant was

an organizer or leader of a criminal organization that involved

five or more participants, or was otherwise extensive.                        See USSG

§ 3B1.1(a).      In determining whether this enhancement applies, a

district court must consider



                                             3
     [1] the exercise of decision making authority, [2] the
     nature of participation in the commission of the
     offense, [3] the recruitment of accomplices, [4] the
     claimed right to a larger share of the fruits of the
     crime, [5] the degree of participation in planning or
     organizing the offense, [6] the nature and scope of
     the illegal activity, and [7] the degree of control
     and authority exercised over others.

United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009)

(quoting USSG § 3B1.1 cmt. n.4).             The district court must find

the enhancement applies by a preponderance of the evidence.                       See

United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009),

cert.    denied,   130   S.   Ct.   1923    (2010).         We    have     thoroughly

reviewed the record and conclude that the district court did not

err in calculating the advisory Guidelines range.

            Borjas-Hernandez        next    argues    that       the   sentence    is

substantively      unreasonable     because    his     codefendants         received

lesser sentences than he did and because he did not have any

criminal history prior to this conviction.                  However, we conclude

that Borjas-Hernandez has failed to overcome the presumption we

apply to his within-Guidelines sentence.               As the district court

correctly    concluded,       Borjas-Hernandez         was       in    a    different

position than his codefendants and, although he did not have a

criminal    history,     he   had   previously       been    deported       at   least

twice, thus demonstrating significant disrespect for the law.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and


                                        4
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    5
