                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4697


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CECIL GEORGE ELSWICK, JR., a/k/a George C. Elswick,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:09-cr-00053-sgw-1)


Submitted:   March 30, 2011                 Decided:    April 11, 2011


Before MOTZ and    KING,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, R. Andrew Bassford,
Assistant  United   States  Attorney,  Roanoke,   Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Appellant      Cecil       George     Elswick,      Jr.     pled    guilty         to

possession of a firearm by a convicted felon, in violation of 18

U.S.C.    § 922(g)(1)      (2006),       and      unauthorized          wearing      of    the

uniform of an officer of the United States Army, in violation of

18 U.S.C. § 702 (2006).             On appeal, Elswick argues the district

court abused its discretion when it imposed a forty-two month

sentence,    which   was      an    upward       variance      from     his    fifteen-to-

twenty-one month advisory Guidelines sentencing range.                               For the

reasons     explained      below,       we       affirm     the       district       court’s

judgment.

            First, Elswick, relying on United States v. Moreland,

437 F.3d 424, 432 (4th Cir. 2006), maintains the district court

erred by failing to determine whether a departure sentence was

appropriate in this case before considering the imposition of a

variant   sentence      and    urges      us     to    treat      his    sentence         as   a

departure.        Elswick’s        argument      is    foreclosed        by    our    recent

opinion in United States v. Diosdado-Star, 630 F.3d 359 (4th

Cir. 2011).

            In Diosdado-Star, we recognized that, to the extent

that   Moreland    requires        a   district       court    to     first    consider        a

departure before deciding whether to vary from the guidelines

range, Moreland was overruled by the Supreme Court’s decisions

in Gall v. United States, 552 U.S. 38 (2007), and Rita v. United

                                             2
States, 551 U.S. 338 (2007).               See Diosdado-Star, 630 F.3d at 366

(“[A]s recognized in Evans, we find that Gall and Rita were

superseding       contrary      decision[s]          of    the   Supreme       Court    that

implicitly      overruled       the    effect,      if    any,   of     the    language    in

Moreland . . . that           the     district      court      should    first     look    to

whether departure is appropriate before varying.”)                                (internal

quotation marks and citation omitted).                      Accordingly, we conclude

the district court acted within its discretion when it imposed a

variant, rather than departure, sentence.

               Next,    Elswick       argues       the    district      court    erred     by

failing    to    incrementally          depart      and    explain      its     incremental

departure      from     the   Guidelines       sentencing        range.         See    United

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (“[E]ven

where     an    upward    departure       .    .     .    is   plainly        warranted,    a

sentencing       court    must        depart       incrementally,        explaining        the

reasons for its departure.”).                      However, this requirement for

departures does not apply here because, as discussed above, the

district        court     did       not       impose       a     departure        sentence.

Accordingly, this argument is without merit.

               Finally, Elswick argues his forty-two month sentence

is substantively unreasonable.                     Upon appellate review of the

substantive reasonableness of a sentence, this Court takes “into

account the ‘totality of the circumstances, including the extent

of any variance from the Guidelines range.’”                          United States v.

                                               3
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552

U.S. at 51).         Here, the totality of the circumstances amply

support     the    district       court’s       significant    upward    sentencing

variance.       The record establishes Elswick has a well-documented,

longstanding       history    of     criminal       behavior    involving    fraud,

forgery, and passing bad checks.                  The district court’s variant

sentence    —     although    a    significant       deviation    from    Elswick’s

advisory Guidelines sentencing range — was carefully crafted to

take these facts into consideration.

            We conclude Elswick’s sentence is reasonable and we

therefore affirm the district court’s judgment.                         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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