                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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