1

Judge Duncan did not participate in consideration of this

case. The opinion is filed by a quorum of the panel pursuant to 28

U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4242

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS SILVA-COLON, a/k/a Carlos Colon,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (5:07-cr-00207-F-1)

Submitted: August 21, 2008 Decided: September 10, 2008

Before WILLIAMS, Chief Judge, and KING and DUNCAN,1

 Circuit Judges.

Affirmed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, Raleigh, North Carolina, for

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

Hayes, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

See U.S. Sentencing Guidelines Manual (“USSG”)

§ 2L1.2(b)(1)(A)(iii)(2007).

2

PER CURIAM:

Carlos Silva-Colon pled guilty to illegal reentry by an

aggravated felon, in violation of 8 U.S.C. §§ 1326(a), (b)(2)

(2000), and was sentenced to forty-seven months’ imprisonment, a

sentence within the advisory guideline range suggested by the

federal sentencing guidelines. He appeals his sentence. We

affirm.

Silva-Colon did not move for a sentence below the

guideline range; thus we review for plain error his claim on appeal

that the district court erred in failing to grant him a downward

sentencing variance. Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731 (1993). Silva-Colon claims a variance

should have been granted, sua sponte, because the application of

the sixteen-level enhancement he received for a prior crime of

violence2 resulted in an unreasonable sentence, as the sentence was

longer than necessary to comply with the statutory purposes of

sentencing set forth in 18 U.S.C. § 3553(a) (West 2000 & Supp.

2007). He does not dispute that his advisory guidelines range was

properly calculated, or that the sixteen-level enhancement was

properly applied. Rather, he claims that any application under

USSG § 2L2.2(b)(1)(A) results in an unreasonable sentence, unless
3

the district court sentences a defendant below the guidelines

range.

We find no merit to Silva-Colon’s assertion that the

district court is required to apply a variance to offset the

application of USSG § 2L1.2(b)(1)(A)(iii), particularly where, as

here, no such request was made by the defendant. Absent such a

request, the district court had no duty to consider granting a

variance.

We review a sentence for reasonableness, applying an

abuse of discretion standard. Gall v. United States, 128 S. Ct.

586, 597-98 (2007). We first determine whether the district court

committed any procedural error, such as failing to calculate the

guideline range properly, consider the § 3553(a) factors, or

explain the sentence adequately, id., and then decide whether the

sentence is substantively reasonable. Id.; see also United

States v. Brewer, F.3d , 2008 WL 733395, at *4 (4th Cir.

2008). In this case, the district court followed the necessary

procedural steps.

The appeals court must also consider the substantive

reasonableness of the sentence. Gall, 128 S. Ct. at 597. A

sentence within a properly calculated guideline range, as

Silva-Colon’s sentence was, may be accorded a presumption of

reasonableness. See Rita v. United States, 127 S. Ct. 2456, 2462

(2007). Here, we conclude that the sentence was reasonable.
4

Silva-Colon does not contest the calculation of his guideline

range, and the district court sentenced him at the middle of the

properly-calculated range. The district court imposed the sentence

after considering the arguments at the sentencing hearing,

including Silva-Colon’s request for leniency, and the § 3553(a)

factors. 

We therefore affirm the sentence imposed by 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