UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4556

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARIO MENDOZA-MENDOZA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (4:08-cr-00032-BR-1)

Submitted: January 28, 2011 Decided: February 18, 2011

Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, James E. Todd, Jr., Research 

and Writing Attorney, Raleigh, North Carolina, for Appellant. 

George E. B. Holding, United States Attorney, Jennifer P. MayParker, 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Unpublished opinions are not binding precedent in this circuit.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:

In July 2008, Dario Mendoza-Mendoza pled guilty to 

illegally reentering the United States after being removed, in 

violation of 8 U.S.C. § 1326(a), (b)(2) (2006). Mendoza-Mendoza 

was sentenced to forty-six months’ imprisonment. On appeal, 

this court vacated his sentence and remanded the case to the 

district court for resentencing. See United States v. MendozaMendoza, 597 F.3d 212 (4th Cir. 2010). 

At resentencing, the district court restated MendozaMendoza’s Guidelines calculations: his total offense level of 

twenty-one, combined with a criminal history category III, 

yielded an advisory sentencing range of forty-six to fifty-seven 

months’ imprisonment. Although Mendoza-Mendoza’s base offense 

level was eight, it was increased sixteen levels because of his 

prior North Carolina convictions for taking indecent liberties 

with a child, which qualified as a crime of violence. See U.S. 

Sentencing Guidelines Manual (“USSG”) § 2L1.2(a), (b)(1)(A) 

(2007). After analyzing the 18 U.S.C. § 3553(a) (2006) 

sentencing factors and considering Mendoza-Mendoza’s arguments 

for a below-Guidelines sentence, the district court again 

sentenced Mendoza-Mendoza to forty-six months’ imprisonment. 

This appeal timely followed. 

On appeal, Mendoza-Mendoza challenges the 

reasonableness of his sentence. With regard to the procedural 
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reasonableness component, Mendoza-Mendoza argues the district 

court failed to properly consider the unique mitigating 

circumstances involved in this case in conducting its analysis 

of the § 3553(a) sentencing factors. As to the substantive 

reasonableness issue, Mendoza-Mendoza first argues USSG 

§ 2L1.2(b)(1)(A) is not entitled to deference because it was 

enacted without deliberation or empirical justification, and 

results in a sentence greater than necessary. Mendoza-Mendoza 

next contends the forty-six-month sentence over-punishes his 

offense conduct. For the reasons that follow, we reject these 

contentions and affirm. 

This court reviews 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. 

Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires 

appellate consideration of both the procedural and substantive 

reasonableness of a sentence. Gall, 552 U.S. at 51. 

In determining procedural reasonableness, we consider 

whether the district court properly calculated the defendant’s 

advisory Guidelines range, considered the § 3553(a) factors, 

analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Id. “Regardless 

of whether the district court imposes an above, below, or 

within-Guidelines sentence, it must place on the record an 
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individualized assessment based on the particular facts of the 

case before it.” United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009) (internal quotation marks omitted). If the 

court finds “no significant procedural error,” it next assesses 

the substantive reasonableness of the sentence, taking “‘into 

account the totality of the circumstances, including the extent 

of any variance from the Guidelines range.’” United States v. 

Morace, 594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. 

at 51), cert. denied, 131 S. Ct. 307 (2010).

In his sole argument pertaining to the procedural 

reasonableness of his sentence,1

The record establishes that the district court 

considered the relationship between Mendoza-Mendoza and Rowe in 

rendering its sentencing decision, but ultimately determined it 

was an insufficient basis for sentencing Mendoza-Mendoza below 

his properly calculated Guidelines range. At its core, MendozaMendoza-Mendoza argues the 

district court erred in its analysis of the § 3553(a) sentencing 

factors. Specifically, Mendoza-Mendoza asserts the district 

court should have afforded more mitigatory weight to the fact 

that he has maintained a long-term relationship with the victim 

of his prior criminal conduct, Heather Rowe. 

 1 Mendoza-Mendoza does not contest the calculation of his 

advisory Guidelines range. 
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Mendoza’s argument asks this court to substitute its judgment 

for that of the district court. This we will not do. 

Accordingly, we hold Mendoza-Mendoza’s sentence is procedurally 

reasonable. 

We next consider the substantive reasonableness of the 

imposed sentence. In conducting substantive reasonableness 

review, this court must “take into account the totality of the 

circumstances, including the extent of any variance from the 

Guidelines range. If the sentence is within the Guidelines 

range, the appellate court may, but is not required to, apply a 

presumption of reasonableness.” Gall, 552 U.S. at 51; see also

United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). 

Mendoza-Mendoza first contends this court should not 

afford a presumption of reasonableness to the within-Guidelines 

sentence he received, because the sixteen-level enhancement 

authorized by USSG § 2L1.2(b)(1)(A) is an arbitrary guideline, 

enacted without deliberation or empirical justification, that 

should not be afforded deference. This argument amounts to a 

policy attack on the applicable enhancement provision, and we 

conclude it is without merit.2

 2 This court has previously rejected this very argument in 

several unpublished, non-binding decisions. See United States 

v. Ibarra-Zelaya, 278 F. App’x 290, 290-91 (4th Cir. 2008) 

(holding presumption of reasonableness not overcome simply 

because district court failed to reject policy of guideline); 

 Accord United States v. 

(Continued)
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Mondragon-Santiago, 564 F.3d 357, 365-67 (5th Cir.) (explaining 

that, although “district courts certainly may disagree with the 

Guidelines for policy reasons and may adjust a sentence 

accordingly[,] . . . if they do not, we will not second-guess 

their decisions under a more lenient standard simply because the 

particular Guideline is not empirically-based”), cert. denied, 

130 S. Ct. 192 (2009). 

Finally, Mendoza-Mendoza argues the forty-six-month 

sentence over-punishes his conduct — his third illegal entry 

into the United States — and thus is substantively unreasonable. 

Mendoza-Mendoza’s argument asks this court to overlook the fact 

that his sentencing range was impacted, primarily, by his status 

of having been removed following a conviction for a crime of 

violence, and instead to view his offense conduct in isolation. 

We decline this request. Further, we hold that MendozaMendoza’s arguments do not overcome the presumption of 

reasonableness afforded his within-Guidelines sentence. 

For the foregoing reasons, we affirm the district 

court’s amended criminal judgment. We dispense with oral 

argument because the facts and legal contentions are adequately 

 

see also United States v. Palacios-Herrera, No. 10-4138, 2010 WL 

4950000 (4th Cir. Dec. 3, 2010) (same); United States v. 

Jimenez-Hernandez, 311 F. App’x 578, 579 (4th Cir. 2008) (same), 

cert. denied, 129 S. Ct. 1598 (2009).
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presented in the materials before the court and argument would 

not aid the decisional process. 

AFFIRMED