UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4248

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE ADRIAN DIAZ-HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00362-WO-1)

Submitted: October 31, 2019 Decided: December 6, 2019 Amended: January 2, 2020

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

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant. Matthew G.T. Martin, Michael F. Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:

Jose Adrian Diaz-Hernandez appeals the 18-month sentence imposed by the district

court following his guilty plea to illegal reentry by a deported alien, in violation of

(a) (2018). Diaz-Hernandez argues that his sentence, which is within the properly

calculated Sentencing Guidelines range, is substantively unreasonable because it is greater

than necessary to accomplish the sentencing goals of

(a) (2018). We

affirm. *

We review criminal sentences for reasonableness using “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.

In determining procedural reasonableness, we consider whether the district court properly

calculated the defendant’s advisory Guidelines range, gave the parties an opportunity to

argue for an appropriate sentence, considered the

(a) sentencing factors,

and sufficiently explained the selected sentence.

. Only after determining that

the sentence is procedurally reasonable do we consider the substantive reasonableness of

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

; United

States v. Provance, ___ F.3d ___, ___, No. 18-4783,

, at *2-4 (4th Cir.

Dec. 3, 2019). “Any sentence that is within or below a properly calculated Guidelines

range is presumptively reasonable,” United States v. White,

(4th Cir.

2016) (internal quotation marks omitted), and Diaz-Hernandez bears the burden of

* This opinion replaces the opinion in this case issued on December 6, 2019.

2 rebutting that presumption “by showing that the sentence is unreasonable when measured

against the § 3553(a) factors,” United States v. Louthian,

(4th Cir. 2014).

At sentencing, the district court established a Guidelines range of 18 to 24 months’

imprisonment. Diaz-Hernandez requested a downward departure pursuant to U.S.

Sentencing Guidelines Manual § 2L1.2 cmt. n.7 (2018)—to account for the time he served

in state custody on an unrelated conviction—or, alternatively, a downward variance. The

district court denied Diaz-Hernandez’s requests. Because the district court explicitly

recognized its authority to depart from the Guidelines range, its decision not to do so is not

reviewable. United States v. Allen,

, 677 n.2 (4th Cir. 2018), cert. denied,

(2019). In denying Diaz-Hernandez’s alternate request for a downward

variance, the district court acknowledged several mitigating factors but ultimately

concluded that a below-Guidelines sentence was insufficient to reflect the seriousness of

the offense and to deter criminal conduct. Because Diaz-Hernandez has failed to rebut the

presumption of reasonableness that we afford his within-Guidelines-range sentence,

Louthian,

, we conclude that the district court did not abuse its discretion

in imposing Diaz-Hernandez’s 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

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