                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4909



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CESAR MENDOZA-RIVERA, a/k/a Carlos Conchiano,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:06-cr-00012-D)


Submitted:   March 30, 2007                   Decided:   May 2, 2007


Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

            Cesar Mendoza-Rivera pled guilty to illegal reentry into

the United States after having been convicted of an aggravated

felony and removed from the United States, in violation of 8 U.S.C.

§ 1326(a), (b)(1) (2000).            The district court sentenced him to

fifty-seven    months       imprisonment.       Mendoza-Rivera    appeals    the

sentence,   contending        that   this    circuit’s   decision    to   review

sentences     within    a    correctly      calculated   guideline   range    as

presumptively reasonable renders the guidelines mandatory and is

consequently unconstitutional.           We affirm.

            Following United States v. Booker, 543 U.S. 220 (2005),

we review a sentence “to determine whether the sentence is within

the statutorily prescribed range and is reasonable.”                      United

States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126

S. Ct. 2054 (2006) (internal quotation marks and citation omitted).

“[A] sentence within the proper advisory Guidelines range is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006). “[A] defendant can only rebut the presumption

by demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”             United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and

citation omitted), petition for cert. filed,                     U.S.L.W.

(U.S. July 21, 2006) (No. 06-5439).             While a district court must

consider the various § 3553(a) factors and explain its sentence, it


                                      - 2 -
need not explicitly reference § 3553 or discuss every factor on the

record.   Johnson, 445 F.3d at 345.         This is particularly true when

the sentence is within the applicable guideline range.              Id.   In

fact, one reason that a sentence within an advisory range is

presumptively reasonable is that the most salient § 3553(a) factors

are already incorporated into guideline determinations.              Id. at

342-43.

           A   sentence   falling    outside     the   guidelines   is    not

presumptively unreasonable.    However, if the sentence was based on

an error in interpreting the guidelines or if the court provided an

inadequate statement of reasons or relied on improper factors, the

sentence will be unreasonable.        United States v. Green, 436 F.3d

449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).                  A

variance justified by reasons tied to § 3553(a) generally will be

reasonable. When a variance from the guidelines is substantial, we

must scrutinize the reasoning more intensely.             The further the

sentencing court diverges from the guideline range, the more

compelling the reasons for the divergence must be.          Moreland, 437

F.3d at 434.

           In light of our precedents, we find no merit in Mendoza-

Rivera’s claim that our standard of review renders the guidelines

per se mandatory.     We further conclude that Mendoza-Rivera has

failed to rebut the presumption that his sentence is reasonable.




                                    - 3 -
           We therefore affirm the sentence imposed by the district

court.   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




                               - 4 -
