UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4575

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HECTOR CERON-GARCIA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, Senior 

District Judge. (3:09-cr-00448-REP-1)

Submitted: January 24, 2011 Decided: February 18, 2011

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, 

Assistant Federal Public Defender, Patrick L. Bryant, Research 

and Writing Attorney, Richmond, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Benjamin L. Hatch, Assistant 

United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Hector Arturo Ceron-Garcia appeals the withinGuidelines 108-month sentence imposed following his guilty plea

to possession with intent to distribute 500 grams or more of 

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), 

(b)(1)(A)(viii) (2006). On appeal, Ceron-Garcia contends that 

the district court imposed a substantively unreasonable sentence 

because it used the offense level determined by the weight of 

actual methamphetamine rather than the entire weight of the 

mixture. Finding no reversible error, we affirm.

We review a sentence imposed by a district court under 

a deferential abuse of discretion standard. Gall v. United 

States, 552 U.S. 38, 45 (2007). First, we review the sentence 

for significant procedural error, examining the record for 

miscalculation of the Guidelines range, the treatment of the 

Guidelines as mandatory, failure to consider the § 3553(a) 

factors, the selection of a sentence based on clearly erroneous 

facts, and failure to adequately explain the chosen sentence and 

any deviation from the Guidelines. Gall, 552 U.S. at 51. If we 

find no significant procedural error, we next assess the 

substantive reasonableness of the sentence. United States v. 

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). If the sentence 

imposed is within the appropriate Guidelines range, we consider 

it presumptively reasonable. United States v. Mendoza-Mendoza,
3

597 F.3d 212, 216 (4th Cir. 2010). The presumption may be 

rebutted by a showing “that the sentence is unreasonable when 

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

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal 

quotation marks omitted).

Ceron-Garcia does not challenge the procedural 

reasonableness of his sentence; he merely argues that the 

district court erred when it declined to vary downward because 

the sentencing disparity for actual methamphetamine and a 

methamphetamine mixture is not based on empirical data and 

national experience, as he argues is required by Kimbrough v. 

United States, 552 U.S. 85, 109-10 (2007). Kimbrough, however, 

did not require an empirical basis for all Sentencing 

Guidelines. United States v. Mondragon-Santiago, 564 F.3d 357, 

366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also

United States v. Talamantes, 620 F.3d 901, 901 (8th Cir. 2010) 

(per curiam). While “district courts certainly may disagree 

with the Guidelines for policy reasons and may adjust a sentence 

accordingly[,] . . . if they do not, [appellate courts] will not 

second-guess their decisions under a more lenient standard 

simply because the particular Guideline is not empiricallybased.” Mondragon-Santiago, 564 F.3d at 367. 

Thus, we presume reasonable Ceron-Garcia’s withinGuidelines sentence. Because Ceron-Garcia fails to rebut the 
4

presumption, we hold that the district court did not abuse its 

discretion in sentencing him to 108 months’ imprisonment. 

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 the 

court and argument would not aid the decisional process.

AFFIRMED