UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5177
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY RAY FANCHER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:05-cr-00013-REM-JSK-1)
Submitted: June 17, 2010 Decided: July 15, 2010
Before TRAXLER, Chief Judge, KING, Circuit Judge, and Benson E.
LEGG, United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Betsy C. Jividen, Acting United States
Attorney, Sherry L. Muncy, David Perri, Assistant United States
Attorneys, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court after a second remand
for resentencing. In our previous decisions, we vacated
Fancher’s sentence based on the district court’s failure to
provide advance notice that it was considering an upward
variance, United States v. Fancher, 513 F.3d 424 (4th Cir.
2008), and the district court’s failure to afford Fancher the
opportunity to address the court prior to the imposition of
sentence. United States v. Fancher, 328 F. App’x 268 (4th Cir.
2009) (No. 08-5187). On remand, the district court sentenced
Fancher to 360 months of imprisonment, five years of supervised
release, a $100 special assessment, and a $5000 fine. Fancher
timely appealed.
On appeal, Fancher argues that the upward variance
sentence is unreasonable. This court reviews Fancher’s sentence
“under a deferential abuse-of-discretion standard,” which first
considers whether the sentence is procedurally reasonable. Gall
v. United States, 552 U.S. 38, 41, 51 (2007). “When rendering a
sentence, the district court must make an individualized
assessment based on the facts presented,” applying the “relevant
§ 3553(a) factors to the specific circumstances of the case
before it.” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (internal quotation marks and emphasis omitted). The
court must also “state in open court the particular reasons
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supporting its chosen sentence” and “set forth enough to
satisfy” this court that it has “considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” Id. (internal quotation marks
omitted). If a sentence is found procedurally reasonable, the
court then considers substantive reasonableness. Gall, 552 U.S.
at 51. In conducting this review, the court examines “the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the degree of the
variance.” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (citation and internal quotation marks omitted).
Fancher argues that the district court abused its
discretion and failed to justify the extent of the upward
variance and thus imposed a sentence greater than necessary.
Our review of the sentencing transcript leads us to conclude
that the district court adequately explained its sentence to
reflect that it considered the relevant § 3553(a) factors and to
provide a sufficiently individualized explanation for its
sentence, as required by Carter. We also conclude that the
extent of the variance was supported by the facts of the case.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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