UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFREY L. KING,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:11-cr-00271-1)
Submitted: November 19, 2012 Decided: November 29, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Debra Kilgore, BURTON KILGORE & LAZENBY, PLLC, Princeton, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, John L. File, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey L. King appeals his forty-eight-month sentence
for distribution of hydromorphone. The sole argument that King
asserts on appeal is that the sentence he received is
substantively unreasonable because the district court relied
upon his criminal history to impose an upward variance from the
advisory Guidelines range, despite the fact that his criminal
history was already factored into the Guidelines calculations.
After thoroughly examining the record and the contentions of the
parties, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. United States v. Susi, 674 F.3d
278, 282 (4th Cir. 2012). Whether a sentence is substantively
unreasonable is considered “in light of the totality of the
circumstances.” United States v. Worley, 685 F.3d 404, 409 (4th
Cir. 2012). In reviewing whether a district court’s decision to
vary from the applicable Guidelines range is substantively
reasonable, we “‘may consider the extent of the deviation [from
the applicable Guidelines range], but must give due deference to
the district court’s decision that the [18 U.S.C. § 3553(a)
(2006)] factors, on a whole, justify the extent of the
variance.’” United States v. Diosdado-Star, 630 F.3d 359, 366
(4th Cir.) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)), cert. denied, 131 S. Ct. 2946 (2011).
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The degree of the variance impacts the quantum of
justification necessary to support the sentence imposed, with a
significant variance requiring more substantial justification
than a minor variance. Id. Nevertheless, “[t]hat a variance
sentence deviates significantly from the advisory Guidelines
range . . . does not alone render it presumptively unreasonable.
Indeed, a sentence that deviates from the Guidelines is reviewed
under the same deferential abuse-of-discretion standard as a
sentence imposed within the applicable guidelines range.”
United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.)
(internal quotation marks omitted), cert. denied, No 11A1054,
12-5002, 2012 WL 2805025 (U.S. 2012). As a result, “‘[t]he fact
that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court.’” Diosdado-Star, 630 F.3d at
366 (quoting Gall, 552 U.S. at 51).
King contends that a district court considering an
upward variance on the basis of the § 3553(a) factors is
precluded from considering a defendant’s criminal history by
virtue of the fact that the defendant’s criminal history is
separately factored into the calculations of the advisory
Guidelines range. But King is mistaken. To the extent that
King takes umbrage with the district court’s double counting of
his criminal history, it is clear that double counting is
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presumptively authorized unless expressly prohibited. United
States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010). King
points to nothing in the pertinent statutes or Guidelines
prohibiting the district court’s course of action. Indeed, the
plain language of § 3553(a) directs a result contrary to that
urged by King, as it provides that a sentencing court must
separately consider both “the history and characteristics of the
defendant” as well as the advisory range established under the
Guidelines. See 18 U.S.C. § 3553(a)(1), (4). By its plain
terms, therefore, § 3553(a) contemplates an upward variance on
the basis of facts that also affect the establishment of the
advisory Guidelines range.
Nor do we perceive any other reason to conclude that,
in light of the totality of the circumstances, the district
court’s chosen sentence was not rooted in reason. See United
States v. Evans, 526 F.3d 155, 166 (4th Cir. 2008). Under the
deference due to the district court’s conclusion that the
§ 3553(a) factors justify the extent of the variance that it
chose to apply to King, we can only conclude that King’s forty-
eight-month sentence is substantively reasonable. See id. at
163-66.
Because King has advanced no other reason why his
sentence is either procedurally or substantively defective, we
affirm the judgment of the district court. We dispense with
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oral argument because the facts and legal contentions are
adequately presented in the material before this court and
argument will not aid the decisional process.
AFFIRMED
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