UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4975

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HUGO ALEJANDRO ESTRADA,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:12-cr-00024-MR-DLH-1)

Submitted: May 20, 2013 Decided: June 6, 2013

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David G. Belser, BELSER & PARKE, PA, Asheville, North Carolina, 

for Appellant. Anne M. Tompkins, United States Attorney, John 

D. Pritchard, Special Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Hugo Alejandro Estrada pled guilty to illegal reentry 

of a previously deported alien, in violation of 8 U.S.C. 

§ 1326(a) (2006). The district court sentenced him to sixteen 

months’ imprisonment, a variance of nine months above the 

advisory Sentencing Guidelines range. On appeal, Estrada 

challenges the procedural and substantive reasonableness of his 

sentence. We affirm.

This court reviews a sentence, “whether inside, just 

outside, or significantly outside the Guidelines range[ ] under 

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

States, 552 U.S. 38, 41 (2007). This review requires 

consideration of both the procedural and substantive 

reasonableness of a sentence. Id. at 51. “Procedural 

reasonableness evaluates the method used to determine a 

defendant’s sentence.” United States v. Mendoza–Mendoza, 597 

F.3d 212, 216 (4th Cir. 2010). We must assess whether the 

district court properly calculated the advisory Guidelines 

range, considered the 18 U.S.C. § 3553(a) (2006) factors, 

analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

51.

Estrada first challenges the procedural aspect of his 

sentence on the ground that the district court failed to provide 
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an individualized assessment when it imposed the variant 

sentence. “Regardless of whether the district court imposes an 

above, below, or within-Guidelines sentence, it must place on 

the record an 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). An 

extensive explanation is not required as long as the appellate 

court is satisfied “‘that [the district court] has considered 

the parties’ arguments and has a reasoned basis for exercising 

[its] own legal decisionmaking authority.’” United States v. 

Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting Rita v. United 

States, 551 U.S. 338, 356 (2007)). Estrada has preserved the 

challenge to this aspect of his sentence “[b]y drawing arguments 

from § 3553 for a sentence different than the one ultimately 

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

2010). If the district court abused its discretion, this court 

will “reverse unless . . . the error was harmless.” Id. at 576.

Our review of the sentencing transcript leads us to 

conclude that the district court sufficiently explained the 

chosen sentence. Specifically, the court cited the relevant 

§ 3553(a) factors it considered and noted Estrada’s multiple 

illegal reentries and involvement in serious drug trafficking 

offenses. Because the district court adequately explained its 
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reasons for the sentence imposed, we conclude that the district 

court committed no procedural error.

Because there is no procedural error, we next review 

the substantive reasonableness of Estrada’s sentence by 

“examin[ing] the totality of the circumstances to see whether 

the sentencing court abused its discretion in concluding that 

the sentence it chose satisfied the standards set forth in 

§ 3553(a).” Mendoza–Mendoza, 597 F.3d at 216. “Where, as here, 

the district court decides that a sentence outside the advisory 

range is appropriate, [the court] ‘must consider the extent of 

the deviation and ensure that the justification is sufficiently 

compelling to support the degree of the variance.’” United 

States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (quoting 

Gall, 552 U.S. at 50). “A major departure from the advisory 

range ‘should be supported by a more significant justification 

than a minor one.’” Id. (quoting Gall, 552 U.S. at 50). Even 

if we would have imposed a different sentence, that fact alone 

will not justify vacatur of the district court’s sentence. 

Gall, 552 U.S. at 51.

Estrada asserts the district court’s imposition of an 

upward variance rendered his sentence substantively unreasonable 

because (1) the district court gave significant weight to an 

improper factor, namely, a hypothetical Guidelines range that 

would have applied to a defendant with a previous conviction for 
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an aggravated felony or one who was charged with a more serious 

illegal reentry offense; and (2) his case presents no 

“compelling” justification for any deviation from the Guidelines 

range. Because Estrada did not raise any objection to the 

court’s explanation of his sentence below, his assertion that 

the district court considered an improper factor is reviewed for 

plain error. See United States v. Hargrove, 625 F.3d 170, 183-

84 (4th Cir. 2010) (on appeal, where defendant claims 

substantive unreasonableness for the first time based on 

district court’s consideration of improper factor when 

explaining basis for sentence, plain error review applies). To 

establish plain error, Estrada must show that 1) the court 

erred, 2) the error is clear and obvious, and 3) the error 

affected his substantial rights. United States v. Olano, 507 

U.S. 725, 732-34 (1993). Even when this burden is met, this 

court has discretion whether to recognize the error, and should 

not do so unless it “seriously affects the fairness, integrity 

or public reputation of judicial proceedings.” Id. at 736 

(internal quotation marks and alterations omitted).

Here, the district court did not impose an eight-level 

enhancement under USSG § 2L1.2. It did, however, consider that 

Estrada’s circumstances were not far removed from those of 

others who received the enhancement. Estrada argues that such 

consideration was improper and could not serve as the basis for 
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an upward departure, particularly when his prior conviction did 

not qualify him for the enhancement. Estrada offers no legal 

authority for his assertion that such consideration by the 

district court constituted error. Furthermore, his argument 

ignores the fact that the district court’s upward variance was 

grounded in its consideration of other § 3553(a) factors. 

The district court emphasized Estrada had been 

deported twice before and that he had been convicted of 

trafficking in methamphetamine, a dangerous and harmful drug. 

The court further noted Estrada’s disregard for the laws of this 

country. The variance was thus based not only on the need to 

avoid unwarranted sentencing disparities among similarly 

situated defendants, but the history and characteristics of the 

defendant, and the need to afford adequate deterrence, to 

protect the public, and to promote respect for the law. 

We conclude that the district court adequately tied 

its decision to vary upward nine months to the § 3553(a) factors 

and that Estrada’s sentence is substantively reasonable. Thus, 

the district court’s decision to depart nine months above the 

Guidelines range is supported by the record and does not 

constitute an abuse of discretion. 

Accordingly, we affirm Estrada’s sentence. We 

dispense with oral argument because the facts and legal 
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contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED