UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4587
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN FION LYONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00206-BO-1)
Submitted: March 16, 2010 Decided: March 22, 2010
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Fion Lyons pled guilty to access device fraud,
in violation of 18 U.S.C. §§ 1029(a)(5), (c) (2006) (Count One)
and aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (2006) (Count Two). Under the properly calculated
advisory Sentencing Guidelines, his range of imprisonment was
twelve to eighteen months on Count One, and the district court
imposed a sentence of forty-eight months for that count. The
district court also imposed a consecutive twenty-four month term
of imprisonment on Count Two, as required by statute. Lyons
appeals only the district court’s variance on Count One,
claiming that the reasons given by the court were not legally
sufficient or procedurally reasonable.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Id. Procedural reasonableness is determined by reviewing
whether the district court properly calculated the defendant’s
advisory Guidelines range and then considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. at 49-51. “Regardless of whether the district court imposes
an above, below, or within-Guidelines sentence, it must place on
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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). Substantive
reasonableness of the sentence is determined by “taking into
account the ‘totality of the circumstances, including the extent
of any variance from the Guidelines range.’” United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552
U.S. at 51).
We find the district court’s sentence was both
procedurally and substantively reasonable. The district court
stated a number of specific reasons supporting its decision to
vary upward on Count One, which reasons were fully supported by
Lyons’ criminal history and the record before the court. * Nor do
we find any reversible error in the fact that the district court
denied on the record the Government’s motion to depart after
announcing its variance decision, especially given that the
*
Specifically, the district court stated that its variance
was imposed: (1) because Lyons had multiple identity theft
crimes over time and other crimes involving theft; (2) to
provide Lyons sufficient time to obtain needed vocational
training; (3) to afford adequate deterrence from further
criminal conduct by removing Lyons from society for a period of
time above that called for by the guidelines range; (4) to
reflect the seriousness of the particular offense; and (5) to
promote respect for the law. The record demonstrates that
Lyons, whose work history was sporadic and unskilled, had been
convicted of eleven felonies and ten misdemeanors, most of which
involved identity theft; the longest time he had spent in prison
was ten to twelve months.
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court heard argument on the upward departure motion prior
imposing the variance sentence.
Accordingly, we affirm Lyons’ 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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