UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5125

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL GILVAJA-LEON,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:07-cr-00036-FDW-1)

Submitted: September 30, 2008 Decided: November 19, 2008

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, Peter S.

Adolf, Emily Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH

CAROLINA, INC., Charlotte, North Carolina; Matthew R. Segal,

Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,

United States Attorney, Adam Morris, Assistant United States

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Daniel Gilvaja-Leon appeals the fifty-seven month

sentence the district court imposed after he pled guilty to one

count of illegal reentry into the United States following

deportation, in violation of 8 U.S.C. § 1326(a), (b)(2) (2000).

For the following reasons, we affirm.

Appellate courts review sentences imposed by district

courts for reasonableness, applying an abuse of discretion

standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007);

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When

sentencing a defendant, a district court must: (1) properly

calculate the guideline range; (2) determine whether a sentence

within that range serves the factors set out in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2008); (3) implement mandatory

statutory limitations; and (4) explain its reasons for selecting a

sentence. Pauley, 511 F.3d at 473. In the Fourth Circuit, “[a]

sentence within the proper Sentencing Guidelines range is

presumptively reasonable.” United States v. Allen, 491 F.3d 178,

193 (4th Cir. 2007); see Rita v. United States, 127 S. Ct. 2456,

2462-69 (2007) (upholding presumption of reasonableness for

within-guidelines sentence). This presumption can be rebutted only

by showing that “the sentence is unreasonable when measured against

the § 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
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375, 379 (4th Cir. 2006) (internal quotation marks and citation

omitted).

Gilvaja-Leon first contends that the district court

improperly applied a presumption of reasonableness in determining

his sentence, which was at the top of the guideline range. In

Rita, the Supreme Court limited application of the presumption as

follows: “the presumption before us is an appellate court

presumption. Given our explanation in Booker, that appellate

‘reasonableness’ review merely asks whether the trial court abused

its discretion, the presumption applies only on appellate review.”

Rita, 127 S. Ct. at 2465. Our review of the record reveals that

although the district court mentioned the presumption, it did not

apply it when determining Gilvaja-Leon’s sentence. Rather, the

court correctly calculated the guideline range, treated the

guidelines as advisory, and, as discussed in more detail below,

considered the § 3553(a) factors in determining Gilvaja-Leon’s

sentence. Accordingly, this argument fails.

Gilvaja-Leon next asserts that the district court erred

in refusing to consider all of the factors set forth in § 3553(a),

specifically § 3553(a)(2)(D). A district court must explain the

sentence it imposes sufficiently for this court to effectively

review its reasonableness but need not mechanically discuss all the

factors listed in § 3553(a). Montes-Pineda, 445 F.3d at 380. The

court’s explanation should indicate that it considered the
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§ 3553(a) factors and the arguments raised by the parties. Id. We

do not evaluate the adequacy of the district court’s explanation

“in a vacuum” but consider “[t]he context surrounding a district

court’s explanation.” Id. at 381.

In this case, the district court explicitly stated that

it considered all of the § 3553(a) factors and highlighted in

particular Gilvaja-Leon’s violent criminal history. The district

court found that Gilvaja-Leon’s record made clear that he had no

respect for the law, and the court therefore concluded it necessary

to protect the public from further crimes. Simply because the

district court may have weighed the § 3553(a) factors differently

than Gilvaja-Leon desired does not establish that the district

court erred in imposing Gilvaja-Leon’s sentence.

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