                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4709


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EZAU YANEZ-HERNANDEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:08-cr-00106-D-1)


Submitted:   February 18, 2011            Decided:   March 15, 2011


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ezau Yanez-Hernandez appeals the 156-month sentence he

received      after     pleading      guilty      to    possession        with    intent     to

distribute          cocaine,    in    violation        of    21      U.S.C.      § 841(a)(1)

(2006), and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2006).

On     appeal,       Yanez-Hernandez      argues        that       the    district        court

violated his Fifth Amendment rights by considering his failure

to cooperate with investigators in determining his sentence.                                 He

also contends that the sentence was greater than necessary under

18 U.S.C. § 3553(a) (2006).              We affirm.

               Because       Yanez-Hernandez           did   not      raise       his     Fifth

Amendment      claim     in    the    district      court,      we    review      for     plain

error.       United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir.

2010).       “To establish plain error, the appealing party must show

that    an    error     (1)    was    made,    (2)      is   plain       (i.e.,     clear    or

obvious),      and     (3)    affects    substantial         rights.”         Id.    at    577.

Even    when     a    defendant      meets     these     three       criteria,      we     “may

exercise      [our]     discretion       to    correct       the     error    only      if   it

seriously affects the fairness, integrity or public reputation

of     judicial       proceedings.”           Id.      (internal         quotation        marks

omitted).

               As    support    for     his    claim     that      the    district        court

violated       his     Fifth    Amendment         rights     at      sentencing,        Yanez-

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Hernandez    relies      on    Mitchell     v.    United    States,      526    U.S.    314

(1999).     We conclude, however, that Yanez-Hernandez’s reliance

on Mitchell is misplaced.             Instead, it appears that neither the

Supreme Court nor this court has addressed the Fifth Amendment

issue   Yanez-Hernandez          raises,     and    other    circuit      courts       have

reached     different         conclusions.          Thus,    in    the       absence     of

mandatory authority to the contrary, Yanez-Hernandez cannot show

that any error was plain.              See Lynn, 592 F.3d at 577; United

States v. Reid, 523 F.3d 310, 316 (4th Cir. 2008) (“An error is

clear or obvious when the settled law of the Supreme Court or

this circuit establishes that an error has occurred.”).

            Yanez-Hernandez          also    argues       that    his    sentence       was

excessive.         Appellate        courts       review     sentences        imposed    by

district     courts      for     reasonableness,          applying      an     abuse    of

discretion standard.             Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).        When sentencing a defendant, a district court must

properly calculate the Guidelines range, treat the Guidelines as

advisory,    consider         the   § 3553(a)       factors,      and     explain       its

reasons for selecting a sentence.                  Pauley, 511 F.3d at 473.              We

presume     that     a    sentence        within     the      properly         calculated

Guidelines range is reasonable.                    United States v. Allen, 491

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

551 U.S. 338, 347 (2007) (upholding application of rebuttable

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presumption       of     correctness     of       within-Guidelines           sentence).

Yanez-Hernandez        has   failed     to       show    unreasonableness       in   the

district court’s determination that aggravating circumstances,

such   as   the   quantity       of   drugs      and    scope   of   the     enterprise,

outweighed the factors offered in mitigation.

            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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