UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4375
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAY ALFRED HOTT, II,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00063-JPB-DJJ-1)
Submitted: January 27, 2009 Decided: April 2, 2009
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Andrew Arnold, ARNOLD, CESARE & BAILEY, PLLC, Shepherdstown,
West Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ray Alfred Hott, II, pled guilty to possession of a
firearm after being convicted of a felony, in violation of
18 U.S.C. § 922(g)(1) (2006), and was sentenced to 108 months
imprisonment. Hott appeals his sentence, contending that the
district court erred in departing or varying above the advisory
guideline range, which the court determined to be 33-41 months,
without giving him adequate notice, and that the extent of the
departure rendered the sentence unreasonable. We affirm.
A sentence is reviewed for abuse of discretion. Gall
v. United States, 128 S. Ct. 586, 591 (2007). First, we must
ensure that the district court committed no “significant
procedural error,” including improperly calculating the
guidelines range, not considering the § 3553(a) factors, relying
on clearly erroneous facts, or giving an inadequate explanation
for the sentence. United States v. Evans, 526 F.3d 155, 161
(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied,
129 S. Ct. 476 (2008). We must then consider the substantive
reasonableness of the sentence imposed, “tak[ing] into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall, 128 S. Ct. at 597.
If the sentence is outside the guideline range, we “must give
due deference to the district court’s decision that the
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§ 3553(a) factors, on a whole, justify the extent of the
variance.” Id.
Hott argues that the district court erred in departing
or varying upward without giving him adequate notice of its
intention, as is required for a departure. See Fed. R. Crim. P.
32(h). However, Hott had sufficient notice of a possible
departure from the presentence report, where the probation
officer advised the court that Hott’s “significant criminal
record” might be grounds for an upward departure. See United
States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002). Moreover,
the district court informed the parties at sentencing that it
was considering a variance from the guidelines and gave them an
opportunity to comment, as required by Rule 32(i)(1)(C). In
addition, the Supreme Court has held that no notice is necessary
for a variance sentence. United States v. Irizarry, 128 S. Ct.
2198 (2008). We conclude that Hott received adequate notice and
an opportunity to comment before the court imposed his sentence,
and that no significant procedural error occurred.
Hott next contends that the extent of the district
court’s deviation from the guideline range was unreasonable. In
imposing sentence, the district court stated that it had
considered all the factors set out in § 3553(a) and made the
following findings:
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The defendant’s conviction in this case constitutes
his sixth felony sentencing event as an adult. He is
an armed career criminal, but was not advised of the
penalties. He is a scourge upon the community based
upon his violent behavior. His significant prior
criminal record, which spans over 36 years, stems from
his impulsiveness and apparent belief that laws and
societal controls do not pertain to him.
Unfortunately previous lengthy periods of imprisonment
have not deterred the defendant from continuing in his
criminal activity. Therefore, it appears that the
only means available to the Court to attempt to deter
future criminal activity and protect society from this
defendant is through an upward variant sentence of
incarceration for a period of 108 months.
Gall requires that, when the sentence deviates
significantly from the guideline range, the district court must
provide “significant justification” for the deviation. Gall,
128 S. Ct. at 597. The court did so here and we conclude that
the sentence is reasonable.
We therefore affirm the sentence. 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
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