UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4161

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SERGIO GARZA, a/k/a Anatolio Balderas-Sanchez,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:14-cr-00076-BR-1)

Submitted: January 19, 2016 Decided: March 8, 2016

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer 

P. May-Parker, Eleanor Morales, Assistant United States

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Sergio Garza pleaded guilty to illegally reentering the 

United States after having been removed following a felony 

conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2012). 

The district court sentenced Garza within the advisory 

Guidelines range to 27 months of imprisonment and he now 

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

On appeal, Garza challenges the procedural reasonableness 

of the 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. 2009). In so doing, we 

first examine the sentence for “significant procedural error,” 

including “failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing 

to consider the [18 U.S.C.] § 3553(a) [(2012)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence.” Gall, 552 

U.S. at 51. In conducting an individualized assessment at 

sentencing, a district court must respond to the parties’ 

nonfrivolous arguments for imposing a sentence outside of the 

Guidelines range. See United States v. Carter, 564 F.3d 325, 

328, 330 (4th Cir. 2009). 
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We then “‘consider the substantive reasonableness of the 

sentence imposed.’” United States v. Evans, 526 F.3d 155, 161 

(4th Cir. 2008) (quoting Gall, 552 U.S. at 51). We will presume

on appeal that a sentence within a properly calculated advisory 

Guidelines range is reasonable. United States v. Allen, 491 

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 

U.S. 338, 346-56 (2007) (upholding presumption of reasonableness 

for within-Guidelines sentence). 

Garza argues that the district court erroneously determined 

that it could not depart or vary from the Guidelines range based 

on the unavailability of a fast track, or early disposition, 

program. Such programs provide for a departure in illegal 

reentry cases if the defendant admitted guilt in a timely manner 

and the government, having determined that such a departure is 

warranted, moves for a departure. See U.S. Sentencing 

Guidelines Manual § 5K3.1 (2015). Here, the court erred in 

determining that an early disposition program was not available 

in the district of the prosecution. However, that error was 

harmless as the Government did not move for a departure pursuant 

to § 5K3.1 of the Guidelines. Without such a motion, the court 

could not have departed under that section. Therefore, we 

conclude that the sentence is procedurally reasonable; we 

further conclude that the sentence is substantively reasonable. 
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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