UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4231

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LIBRADO PELAGIO JACOBO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. Thomas D. Schroeder, 

District Judge. (1:10-cr-00240-TDS-1)

Submitted: September 13, 2011 Decided: September 21, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, 

Winston-Salem, North Carolina, for Appellant. Clifton Thomas 

Barrett, Assistant United States Attorney, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Librado Pelagio Jacobo appeals the district court’s 

judgment entered pursuant to his guilty plea to one count of 

possession with intent to distribute 500 grams or more of 

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

and (b)(1)(B) (2006) (“Count Two”), and to one count of 

possession of a firearm in furtherance of a drug trafficking 

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) 

(“Count Five”). The district court sentenced Jacobo to 108 

months’ incarceration on Count Two and 60 months’ imprisonment 

on Count Five. On appeal, Jacobo’s counsel filed a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), in which 

he states that he could identify no meritorious issues for 

appeal, but questions whether Jacobo’s sentence was reasonable.*

This court reviews a sentence for reasonableness under 

a deferential abuse-of-discretion standard. Gall v. United 

States, 552 U.S. 38, 51 (2007). A reasonableness review 

includes both procedural and substantive components. Id. A 

sentence is procedurally reasonable where the district court 

committed no significant procedural errors, such as improperly 

calculating the Guidelines range, failing to consider the 18 

 * Jacobo was advised of his right to file a pro se 

supplemental brief but has declined to do so. The Government 

has indicated that it will not file a brief in this matter.
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U.S.C. § 3553(a) (2006) factors, or insufficiently explaining 

the selected sentence. United States v. Boulware, 604 F.3d 832, 

837-38 (4th Cir. 2010). The substantive reasonableness of a 

sentence is assessed in light of the totality of the 

circumstances. Gall, 552 U.S. at 51. While a sentence may be 

substantively unreasonable if the § 3553(a) factors do not 

support the sentence, “[r]eviewing courts must be mindful that, 

regardless of ‘the individual case,’ the ‘deferential abuse-ofdiscretion standard of review . . . applies to all sentencing 

decisions.’” United States v. Diosdado-Star, 630 F.3d 359, 366 

(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011) (citing Gall, 

552 U.S. at 52). Moreover, a sentence that falls within a 

properly calculated Guidelines range is presumptively 

reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 

2007). Where, as here, an appellant has preserved his challenge 

“[b]y drawing arguments from § 3553 for a sentence different 

than the one ultimately imposed,” an abuse of the court’s 

discretion must be reversed unless it constitutes harmless 

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

2010).

At sentencing, Jacobo raised no objections to the 

findings or calculations made in the presentence report (the 

“PSR”), which established an applicable sentencing range of 108 

to 135 months’ imprisonment on Count Two, and a consecutive 
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sixty-month sentence on Count Five. Instead, Jacobo raised 

before the district court the same argument that he does here; 

namely, that Jacobo warranted a sentence below the applicable 

guideline range based on his limited education, his clean 

criminal record, and his cooperation with authorities. 

Our review of the record persuades us that the 

district court did not abuse its discretion in declining 

Jacobo’s request to depart downward from the guideline range 

that he concedes was correctly computed. Indeed, “[a] district 

court’s decision not to depart from the Sentencing Guidelines is 

not reviewable unless the court mistakenly believed that it 

lacked authority to depart.” Allen, 491 F.3d at 193 (quoting 

United States v. Carr, 271 F.3d 172, 176 (4th Cir. 2001)). The 

record in this case clearly demonstrates that the court 

understood its ability to impose a sentence of sixty months, but 

that it simply chose not to, based on its assessment of the 

factors enumerated in § 3553(a). See United States v. Moulden, 

478 F.3d 652, 657 (4th Cir. 2007). We therefore conclude that 

the district court’s decision to impose a within-Guidelines 

sentence on Jacobo was a proper exercise of its prerogative. 

See Allen, 491 F.3d at 193.

In accordance with Anders, we have reviewed the entire 

record in this case, including the guilty plea hearing, and have 

found no meritorious issues for appeal. We therefore affirm the 
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district court’s judgment. This court requires that counsel 

inform Jacobo, in writing, of the right to petition the Supreme 

Court of the United States for further review. If Jacobo

requests that a petition be filed, but counsel believes that 

such a petition would be frivolous, then counsel may move in 

this court for leave to withdraw from representation. Counsel’s 

motion must state that a copy thereof was served on Jacobo.

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