                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4403


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CARLOS MARIO MOTA SANDOVAL,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:16-cr-00237-WO-7)


Submitted: April 30, 2018                                          Decided: May 3, 2018


Before GREGORY, Chief Judge, and DIAZ and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA, Charlotte, North
Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

         Carlos Mario Mota Sandoval appeals his conviction and sentence for conspiracy to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A),

846 (2012). Sandoval pled guilty pursuant to a written plea agreement and was sentenced

to 52 months’ imprisonment and 5 years of supervised release. On appeal, counsel for

Sandoval filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious issues for appeal but seeking review of the district court’s

failure to apply sua sponte a mitigating role adjustment at sentencing.               In his

supplemental pro se brief, Sandoval contends that the district court erred by failing to

consider sua sponte Sandoval’s status as a deportable alien to be a mitigating factor. The

government elected not to file a response to the Anders brief. We affirm Sandoval’s

conviction and sentence.

         We review a sentence for procedural and substantive reasonableness under a

deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).

We must first ensure that the district court did not commit any “significant procedural

error,” such as failing to properly calculate the applicable Sentencing Guidelines range,

failing to consider the 18 U.S.C. § 3553(a) (2012) sentencing factors, or failing to

adequately explain the sentence. Id. “In assessing a challenge to a sentencing court’s

application of the Guidelines, we review the court’s factual findings for clear error and its

legal conclusions de novo.” United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir.

2010).



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       If we find the sentence procedurally reasonable, we then consider its substantive

reasonableness. Gall, 552 U.S. at 51. “Any sentence that is within or below a properly

calculated Guidelines range is presumptively reasonable.” United States v. Louthian, 756

F.3d 295, 306 (4th Cir. 2014). “Such a presumption can only be rebutted by showing that

the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.

       “If a party repeats on appeal a claim of procedural sentencing error . . . which it

has made before the district court, we review for abuse of discretion.” United States v.

Lynn, 592 F.3d 572, 576 (4th Cir. 2010). If the defendant did not argue for a sentence

different than the one imposed, we review for plain error. Id. at 578. “To satisfy plain

error review, the defendant must establish that: (1) there is a sentencing error; (2) the

error is plain; and (3) the error affects his substantial rights.” United States v. Aplicano-

Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “If the three-part plain error test is satisfied,

we must decide whether to cure the error, and should not do so unless the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted).

       The U.S. Sentencing Guidelines Manual (“USSG”) provides for various

reductions to a defendant’s offense level if the defendant “play[ed] a part in committing

the offense that makes him substantially less culpable than the average participant in the

criminal activity.” USSG § 3B1.2 cmt. n.3(A) (2016). In applying the mitigating role

adjustment, the sentencing court must engage in a fact-specific evaluation of the totality

of the circumstances, comparing the defendant to the other individuals with whom he

participated, not to the average participant in similar offenses. See id. cmt. n.3(C);

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United States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016) (discussing factors

to consider in applying mitigating role adjustment). The defendant bears the burden of

demonstrating by a preponderance of the evidence that he is entitled to a mitigating role

adjustment. United States v. Powell, 680 F.3d 350, 358-59 (4th Cir. 2012) (internal

quotation marks omitted), superseded by regulation on other grounds as stated in United

States v. Carbajal, 717 F. App’x 234, 240 (4th Cir. 2018) (No. 16-4358). We have

reviewed the record and the relevant legal authorities and conclude that the district court

did not plainly err in failing to apply the mitigating role adjustment sua sponte.

       Sandoval next contends that the district court should have, sua sponte, raised the

issue of whether his status as a deportable alien warranted either an adjustment to his

base offense level or a downward departure from the Guidelines. Although a defendant’s

status as a deportable alien may be considered as a mitigating factor, it does not require a

lesser sentence. See United States v. Gomez-Jimenez, 750 F.3d 370, 384 n.8 (4th Cir.

2014) (collecting cases). Accordingly, the district court did not plainly err by failing to

raise this issue sua sponte.

       In accordance with Anders, we have reviewed the record in this case and have

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Sandoval, in writing, of the right to petition the

Supreme Court of the United States for further review. If Sandoval requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Sandoval.

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      We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.


                                                                          AFFIRMED




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