                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4732


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MIGUEL LOPEZ-RAMIREZ, a/k/a Fernando Miranda,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00062-REP-1)


Argued:   May 12, 2010                    Decided:   June 15, 2010


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge


Affirmed by unpublished per curiam opinion.


ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.      Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant.    Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Miguel      Lopez-Ramirez      (Miguel)     challenges        the    substantive

reasonableness of the fifty-nine month sentence imposed by the

district      court    following     his    guilty     plea    to    the    charge     of

illegally reentering the United States following the commission

of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1).                               We

affirm.



                                            I

      Miguel is a citizen of Mexico.                 He unlawfully entered the

United      States    in   April    2000,   was   convicted         of    assault    with

bodily      injury,    resisting     arrest,    evading       arrest,      and   related

counts in Tennessee state court in June 2001, and sentenced to a

term of imprisonment of eleven months, twenty-nine days, with

fifty percent of the sentence suspended.                      He was arrested by

federal immigration authorities in October 2001 and was removed

to Mexico in December 2001.

      Sometime        in   March   2002,    Miguel     illegally         reentered    the

United States near El Paso, Texas.                   On July 5, 2002, he was

convicted of unlawful possession of a weapon and evading arrest

in Tennessee state court and sentenced to thirty days in jail.

On   July    8,   2002,    Miguel    was    arrested    by    federal      immigration

authorities and the previous removal order was reinstated.                             On



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September 24, 2002, pursuant to the reinstated removal order,

Miguel was removed to Mexico.

      On March 9, 2003, Miguel illegally reentered the United

States    near      Eagle   Pass,    Texas.       On   March      11,   2003,   he   was

arrested       by     United       States     Border     Patrol         officers     in

Brackettville, Texas.             For this reentry, Miguel was convicted on

October 10, 2003 in the United States District Court for the

Western District of Texas of illegally reentering the United

States following removal, 8 U.S.C. § 1326(a), a felony, and was

sentenced to eight months’ imprisonment.                  On November 10, 2003,

Miguel’s previous order of removal was reinstated.                        On November

13, 2003, pursuant to the reinstated removal order, Miguel was

removed to Mexico.

      At some time in December 2003, Miguel illegally reentered

the   United     States     near    Laredo,   Texas.         On   January   2,     2004,

Miguel was arrested by federal immigration authorities in Eagle

Pass, Texas.          For this reentry, Miguel was convicted in the

United States District Court for the Western District of Texas

of illegally reentering the United States following removal, 8

U.S.C.     § 1326(a),       and     was   sentenced     to     twenty-one       months’

imprisonment, with three years of supervised release. 1                            After

      1
       Based on the criminal conduct that followed this § 1326(a)
conviction, Miguel is facing the revocation of his supervised
release.


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completing his sentence of imprisonment, on February 3, 2006,

Miguel’s previous order of removal was reinstated.                     On April 28,

2006,    pursuant        to   the   reinstated     removal   order,     Miguel    was

removed to Mexico.

      At some time in February 2008, Miguel illegally reentered

the United States near Laredo, Texas.                   On July 9, 2008, Miguel

was   arrested      by    federal     immigration       authorities    in   Atlanta,

Georgia.     On July 17, 2008, Miguel’s previous order of removal

was reinstated.           On August 2, 2008, pursuant to the reinstated

removal order, Miguel was removed to Mexico.

      In   December       2008,     Miguel   illegally     reentered    the   United

States at an unknown location.               On February 11, 2009, Miguel was

found in the Eastern District of Virginia by federal immigration

authorities while he was in the custody of the Sheriff’s Office

of Chesterfield County, Virginia, awaiting trial for DUI.

      On February 17, 2009, a federal grand jury sitting in the

United     States    District        Court   for    the    Eastern     District   of

Virginia returned a one-count indictment charging Miguel with

illegally reentering the United States following the commission

of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1).                      On May

7, 2009, Miguel pleaded guilty to this offense.

      In   preparation        for    sentencing,    a    presentence    report    was

prepared by a United States probation officer.                        The probation

officer concluded that Miguel’s total offense level was ten and

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his   criminal       history          category     was     five,       which    resulted       in   a

sentencing       range           of     twenty-one          to     twenty-seven           months’

imprisonment. 2

       At the sentencing hearing on July 24, 2009, neither party

objected to the PSR.                  After considering the presentence report,

Miguel’s conduct, the factors set forth in 18 U.S.C. § 3553(a),

and    the     advisory      Sentencing          Guidelines,            the    district        court

determined that a sentence within the advisory sentencing range

would not serve the purposes of § 3553(a) and therefore elected

to    impose    an    upward          variance     sentence        of       fifty-nine    months’

imprisonment.         The upward variance sentence was premised on the

following findings: (1) Miguel had “shown a remarkable disregard

for    the    law,”    (J.A.          78);   (2)    he     had     been       given    reasonable

treatment      under       the    law    and     that      had    not       deterred     him    from

violating      federal       immigration           laws;    (3)        he    committed    serious

crimes       while    in    the       United     States;         and    (4)    any     sentencing

disparity resulting in this case was not unwarranted.                                      Miguel




       2
       The probation officer arrived at the total offense level
of ten as follows: base offense level of eight, U.S. Sentencing
Guidelines Manual (USSG) § 2L1.2(a), plus four levels for the
commission of the instant offense after a prior felony
conviction, USSG § 2L1.2(b)(1)(D), and minus two levels for
acceptance of responsibility, USSG § 3E1.1(a).         Miguel’s
criminal history category of five was premised on his twelve
criminal history points.



                                               - 5 -
noted      a       timely        appeal,        challenging          the        substantive

reasonableness of his sentence.



                                               II

      We review a sentence for reasonableness, applying an abuse-

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

(2007).        Our    initial      review      is     for    “significant         procedural

error,”        including         “failing      to      calculate          (or     improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a   sentence     based      on    clearly      erroneous      facts,       or    failing    to

adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.”                        Id.

      We   next      “consider      the     substantive       reasonableness         of    the

sentence imposed.”           Id.      At this stage, we “take into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range.”                         Id.     “If the district

court decides to impose a sentence outside the Guidelines range,

it must ensure that its justification supports the degree of the

variance.”         United    States       v.   Evans,       526    F.3d    155,    161    (4th

Cir.),     cert.     denied,       129    S.    Ct.    476    (2008)       (citation       and

internal       quotation     marks       omitted).          This    court       presumes    on

appeal that a sentence within a properly calculated advisory

sentencing range is substantively reasonable.                         United States v.

                                            - 6 -
Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United

States, 551 U.S. 338, 346-56 (2007) (upholding permissibility of

presumption of reasonableness for a sentence within the advisory

sentencing range).

      There is no challenge to the procedural reasonableness of

the sentence, so we may proceed directly to the question of

substantive       reasonableness.              In   this      case,       on    the    one       hand,

Miguel’s    fifty-nine          month    sentence        is,      percentage-wise,               much

higher than the high-end of the sentencing range.                                    On the other

hand, the district court correctly noted that Miguel has not

been deterred by short sentences in the past.                              In 2008 alone, he

twice     illegally       reentered           the     United      States,            and    he     has

illegally entered the United States six times.                              Even after being

twice convicted of illegally reentering the United States and

serving    time    for        those    offenses,       he     returned          to    the     United

States     less        than     two     years         after       being         released         from

imprisonment.           Moreover,        Miguel       has     a     series       of        uncharged

immigration       violations          which    resulted        in    a     lower       sentencing

range,    and   his      criminal       history,       aside        from       the    immigration

violations,       is    less    than    stellar.            While     a    district          court’s

sentencing discretion is not unbounded, a sentencing appeal is

not an opportunity for the appellate court to substitute its

judgment for that of the district court.                            Here, understandably,

the   district     court       concluded        that    Miguel        had       demonstrated        a

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complete   disregard   for   the   laws    of   this   country,   needed   to

respect the laws of this country, and needed to be deterred from

committing future violations.        Finally, although the fifty-nine

month sentence is substantial, it does not create an unwarranted

disparity with similarly situated defendants and is well below

the   ten-year   statutory   maximum   established      by   Congress.     In

short, we find no abuse of discretion in the upward variance

sentence imposed by the district court.

                                                                   AFFIRMED




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