UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5270

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

JUAN CARLOS GALVAN-MAGANA, a/k/a Juan Carlos Sandoval,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas David 

Schroeder, District Judge. (1:10-cr-00105-TDS-1)

Submitted: August 18, 2011 Decided: August 22, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam 

opinion.

Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C., for 

Appellant. Ripley Rand, United States Attorney, Michael F. 

Joseph, Assistant United States Attorney, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Juan Carlos Galvan-Magana appeals from his 

forty-four-month sentence imposed pursuant to his guilty plea to 

illegal re-entry of a convicted felon. Galvan-Magana challenges 

his sentence on various grounds. We affirm.

First, Galvan-Magana asserts that the district court 

erred in denying his motion for a departure on the basis of 

cultural assimilation. However, we lack the authority to review 

a district court’s denial of a downward departure unless the 

district court did not recognize its authority to depart. 

United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). As

it is clear that the district court understood its discretion in 

this matter, we dismiss this portion of the appeal.

Second, Galvan-Magana challenges his sentence on 

various bases not raised below. Specifically, he asserts that 

his sentence is greater than necessary and unreasonable because 

it lacks an empirical basis, the Guidelines overstate the 

seriousness of his offense, illegal re-entry permits double 

counting of prior convictions, the Guidelines create incongruous 

and overreaching results, there is a disparity in sentencing 

across districts, and illegal re-entry defendants spend more 

time incarcerated than other defendants receiving the same 

sentence. While Galvan-Magana was free to argue to the district 

court that any or all of these circumstances supported a 
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variance sentence, he did not do so. Because there was no 

procedural error by the district court in its consideration of 

these issues, our review on appeal is limited to considering the 

substantive reasonableness of the sentence under an abuse of 

discretion standard. See United States v. Savillon-Matute, 636 

F.3d 119, 122-23 (4th Cir. 2011).

As such, we “examine[] 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 [18 U.S.C.A.] § 3553(a) [(West 2000 & 

Supp. 2011)].” United States v. Mendoza-Mendoza, 597 F.3d 212, 

216 (4th Cir. 2010). We presume on appeal that a sentence 

within a properly calculated Guideline range is reasonable. 

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We 

have reviewed the record and conclude that the district court 

considered the § 3553(a) sentencing factors and imposed a 

sentence consistent with those factors. Specifically, the court 

noted Galvan-Magana’s continued criminal conduct, his 

involvement with drugs, and the need to protect the public, and 

weighed these factors against Galvan-Magana’s ties to the United 

States and his employment history.

Because Galvan-Magana has not rebutted the presumption 

of reasonableness accorded his within-Guidelines sentence, we 

affirm his sentence. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

DISMISSED IN PART;

AFFIRMED IN PART