UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4246

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO DE JESUS MARTINEZ-INTRERIANO, a/k/a Jose CarranzaContreras,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:09-cr-00266-BO-1)

Submitted: December 15, 2010 Decided: January 13, 2011

Before SHEDD, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven A. Feldman, FELDMAN & FELDMAN, Uniondale, New York, for 

Appellant. George E. B. Holding, United States Attorney, 

Jennifer P. May-Parker, Sebastian Kielmanovich, Assistant United 

States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Mario de Jesus Martinez-Intreriano pleaded guilty to

illegally reentering the country after having been deported 

following a conviction for an aggravated felony, in violation of 

8 U.S.C. § 1326(a), (b)(2) (2006). The district court sentenced 

Martinez-Intreriano to fifty-seven months of imprisonment and he 

now appeals. For the reasons that follow, we affirm. 

Martinez-Intreriano argues that the district court 

erred in failing to adequately explain the chosen sentence. We 

review a sentence for reasonableness, applying an abuse of 

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

(2007); see also United States v. Layton, 564 F.3d 330, 335 (4th 

Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we 

first examine the sentence for “significant procedural error,” 

including “failing to calculate (or improperly calculating) the 

[g]uidelines range, treating the [g]uidelines as mandatory, 

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence . . . .” 

Gall, 552 U.S. at 51. We then “‘consider the substantive 

reasonableness of the sentence imposed.’” United States v. 

Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 552 U.S. at 

51), cert. denied, 129 S. Ct. 476 (2008). If the sentence is 

within the guidelines range, then we apply a presumption of 
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reasonableness. Rita v. United States, 551 U.S. 338, 346-59 

(2007) (upholding presumption of reasonableness for 

within-guidelines sentence). 

We have held that a district court must conduct an 

“individualized assessment” of the particular facts of every 

sentence, whether the court imposes a sentence above, below, or 

within the guidelines range. United States v. Carter, 564 F.3d 

325, 330 (4th Cir. 2009). While “[t]his individualized 

assessment need not be elaborate or lengthy, . . . it must 

provide a rationale tailored to the particular case at hand and 

adequate to permit meaningful appellate review.” Id. at 330 

(internal quotation marks and citation omitted). In addition, 

“[w]here [the parties] present[] nonfrivolous reasons for 

imposing a . . . sentence [outside the advisory guidelines 

range,] . . . a district judge should address the party’s 

arguments and explain why he has rejected those arguments.” Id.

at 328 (internal quotation marks and citation omitted). 

Moreover, “[b]y drawing arguments from § 3553 for a 

sentence different than the one ultimately imposed, an aggrieved 

party sufficiently alerts the district court of its 

responsibility to render an individualized explanation 

addressing those arguments, and thus preserves its claim.” 

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). In 

order to preserve a claim, however, a defendant must argue for a 
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sentence different than that ultimately imposed. See id.; see 

also United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 

2010) (“[A] defendant need only ask for a sentence outside the 

range calculated by the court prior to sentencing in order to 

preserve his claim for appellate review.”) (citation omitted). 

Where a defendant has failed to preserve the claim for appellate 

review, we review for plain error. 

Martinez-Intreriano argues that the district court 

failed to explain the within-guidelines sentence, and failed to 

respond to his nonfrivolous sentencing arguments. We agree. 

However, while Martinez-Intreriano argued factors in mitigation 

at sentencing, he never requested a sentence below the 

guidelines range or otherwise different than the sentence 

imposed by the district court. Therefore, we review this issue 

for plain error. 

“To establish plain error, [Martinez-Intreriano] must 

show that an error occurred, that the error was plain, and that 

the error affected his substantial rights.” United States v. 

Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if 

Martinez-Intreriano satisfies these requirements, “correction of 

the error remains within our discretion, which we should not 

exercise . . . unless the error seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.” Id. (internal quotation marks and citation 
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omitted). We have thoroughly reviewed the record and conclude 

that Martinez-Intreriano has failed to demonstrate that the 

court’s failure to adequately explain the chosen sentence was 

plain error.

Accordingly, we affirm the judgment of 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