UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4472

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FERNANDO GARCIA-RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00382-CCE-1)

Submitted: January 29, 2013 Decided: March 12, 2013

Before GREGORY, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas H. Johnson, Jr., GRAY & JOHNSON, LLP, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, JoAnna G. McFadden, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Fernando Garcia-Rodriguez pleaded guilty, pursuant to

a written plea agreement, to illegal reentry after removal based

on a conviction for an aggravated felony, in violation of

(a), (b)(2) (2006). The district court sentenced

Garcia-Rodriguez to fifty-seven months’ imprisonment. On

appeal, Garcia-Rodriguez asserts that his sentence was

unreasonable because the district court declined to impose a

lower sentence. We affirm.

We review Garcia-Rodriguez’s sentence under a

deferential abuse-of-discretion standard. Gall v. United

States,

(2007). This review requires

consideration of both the procedural and substantive

reasonableness of the sentence. Id.; United States v. Lynn,

(4th Cir. 2010). After determining whether the

district court correctly calculated the advisory Guidelines

range, we must decide whether the court considered the § 3553(a)

factors, analyzed the arguments presented by the parties, and

sufficiently explained the selected sentence. Lynn,

; United States v. Carter,

(4th Cir.

2009).

Once we have determined that the sentence is free of

procedural error, we consider the substantive reasonableness of

the sentence, “tak[ing] into account the totality of the

2 circumstances.” Gall,

; Lynn,

.

If the sentence is within the appropriate Guidelines range, we

apply a presumption on appeal that the sentence is reasonable.

United States v. Mendoza-Mendoza,

(4th Cir.

2010). Such a presumption is rebutted only if the defendant

demonstrates “that the sentence is unreasonable when measured

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

(4th Cir. 2006) (internal quotation marks

omitted).

To the extent that Garcia-Rodriguez challenges the

district court’s denial of a downward departure, a district

court’s refusal to depart from the applicable Guidelines range

does not provide a basis for appeal “unless the court failed to

understand its authority to do so.” United States v. Brewer,

(4th Cir. 2008). Garcia-Rodriguez does not

assert, and the record does not indicate, that the district

court misunderstood its authority to depart. Accordingly, this

claim is not reviewable on appeal.

To the extent that Garcia-Rodriguez alleges that the

district court erred in failing to grant a downward variance, we

conclude that Garcia-Rodriguez’s sentence is both procedurally

and substantively reasonable. Garcia-Rodriguez does not assert

any specific procedural error, and our review of the record

confirms that the district court properly considered the

3 § 3553(a) factors, provided a detailed individualized

assessment, responded to defense counsel’s argument for a below-

Guidelines sentence, and clearly explained the imposed sentence.

Furthermore, Garcia-Rodriguez presents no evidence to rebut the

presumption of reasonableness applicable to his within-

Guidelines sentence.

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

this court and argument would not aid the decisional process.

AFFIRMED

4