UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5154

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ELDER RAXCACO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

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

District Judge. (3:07-cr-00271-REP-1)

Submitted: March 20, 2008 Decided: July 24, 2008

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, Richmond, Virginia, for

Appellant. Chuck Rosenberg, United States Attorney, Sara E. Chase,

Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Elder Raxcaco pled guilty to being unlawfully in the

United States after having been deported, in violation of 8 U.S.C.

§ 1326 (2000). He was sentenced to twelve months and one day

imprisonment. On appeal, Raxcaco argues his sentence was

unreasonable based on the sentencing factors set forth in 18 U.S.C.

§ 3553(a) (2000), and he challenges the district court’s decision

to impose a variant sentence. We affirm the judgment of the

district court.

Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

First, it must calculate the appropriate advisory guidelines range.

It must then consider the resulting range in conjunction with the

factors set forth in § 3553(a) and determine an appropriate

sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.

2006).

Appellate review of a district court’s imposition of a

sentence is for abuse of discretion. Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007). The appellate court must first ensure

that the district court committed no procedural error, such as

“failing to calculate (or improperly calculating) the Guideline

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly
- 3 -

erroneous facts, or failing to adequately explain the chosen

sentence--including an explanation for any deviation from the

Guideline range.” Gall, 128 S. Ct. at 597. 

If there are no procedural errors, the appellate court

then considers the substantive reasonableness of the sentence. Id.

“Substantive reasonableness review entails taking into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range.” Pauley, 511 F.3d at 473. While the

court may presume a sentence within the Guidelines range to be

reasonable, it may not presume a sentence outside the range to be

unreasonable. Id. Moreover, it must give due deference to the

district court’s decision that the § 3553(a) factors justify

imposing a variant sentence and to its determination regarding the

extent of any variance. Even if the reviewing court would have

reached a different sentencing result on its own, this fact alone

is insufficient to justify reversal of the district court. Id. at

474.

Here, the district court followed the necessary

procedural steps in sentencing Raxcaco, properly calculating the

Guidelines range and considering that recommendation in conjunction

with the § 3553(a) factors. In light of the facts of this case,

and the district court’s meaningful articulation of its

consideration of the § 3553(a) factors and its bases for departing
- 4 -

from the recommended guideline range, we find the district court’s

decision to depart, and the extent of the departure, reasonable.

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