                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4201


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES MILLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:11-cr-00185-D-1)


Submitted:   December 20, 2012            Decided:   January 7, 2013


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert H. Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES, ATTORNEYS AT
LAW, PC, Raleigh, North Carolina, for Appellant.    Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-
McKinney, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

             James Miller pled guilty to possession of contraband

by an inmate, 18 U.S.C. § 1791(a)(2), (b)(3) (2006), and was

sentenced    to    a   term   of   fifty-eight         months’    imprisonment,       an

upward variance of twelve months from the top of the career

offender      Guidelines        range          the     district        court        found

applicable.       U.S. Sentencing Guidelines Manual § 4B1.1 (2011).

Miller appeals his sentence, contending that the district court

procedurally erred by finding that he was a career offender and

substantively erred by varying upward.                 We affirm.

             Miller possessed two homemade knives, or shanks, which

were both concealed in his clothing when they were discovered.

At his sentencing hearing, Miller unsuccessfully challenged his

designation as a career offender on the ground that his instant

offense was not a crime of violence.                       The court varied upward

from   the   Guidelines       range   of   37-46       months    in    light    of   the

seriousness       of   Miller’s    offense,          his    history    of    drug    and

firearms     offenses    beginning      at      an    early     age,   his     repeated

failure to comply with conditions of supervised release, and the

disciplinary infractions he incurred while he was incarcerated.

The court explained that the variance was necessary “to punish

and to deter [Miller] for the serious offense. . . . to deter

others . . . [and] to incapacitate [Miller].”



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             We review a sentence for reasonableness under an abuse

of discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), which requires consideration of both the procedural and

substantive        reasonableness             of    a     sentence.               Id.;    see     United

States      v.     Lynn,       592        F.3d          572,     575        (4th         Cir.     2010).

Miscalculation          of     the       Guidelines             range        is     a     significant

procedural       error.        Gall,          552    U.S.       at    51.         The     substantive

reasonableness          of     a       sentence          is     reviewed           for        abuse     of

discretion,        “tak[ing]            into        account          the     totality           of     the

circumstances, including the extent of any variance from the

Guidelines       range.”           Gall,      552       U.S.    at     51.         In    reviewing       a

variance, the appellate court must give due deference to the

sentencing court’s decision.                        United States v. Diosdado-Star,

630   F.3d       359,   366        (4th       Cir.)       (citing          Gall,        552     U.S.    at

51), cert. denied, 131 S. Ct. 2946 (2011).

             We     conclude           that    the       district          court        did     not    err

procedurally in finding that Miller’s possession of shanks was a

crime of violence.             See United States v. Mobley, 687 F.3d 625

(4th Cir. 2012), petition for cert. filed, Nov. 8, 2012.

             With respect to the variance, Miller claims first that

it    was     based       on       a     consideration               of      improper           factors,

specifically, his apparent failure to accept the teachings of

the Jehovah’s Witnesses, as his parents did, and that the court

“relied      too    heavily         on     its      own        subjective          belief       in     the

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seriousness of the offense[.]”               However, the record shows that

the district court did not rely on Miller’s religious beliefs or

lack   of   beliefs    in    determining       the    sentence.        The    court’s

comments were not focused on Miller’s beliefs, but on his early

inclination to crime.         Moreover, in light of Mobley, the court

properly assessed the seriousness of the crime.

            Miller    also    argues    that    the     extent    of   the    court’s

variance was unreasonable because it was almost twice as much as

the top of the 24-to-30-month Guidelines range that that would

have applied had the court decided that he was not a career

offender.    This claim is meritless because the court correctly

determined that Miller was a career offender.

            Last, Miller contends that, even if the district court

correctly determined that he was a career offender, the upward

variance was unreasonable.             The district court’s justification

for a variance must support the degree of the variance, but the

court need not identify “extraordinary circumstances,” even for

a major deviation from the Guidelines range.                  Diosdado-Star, 630

F.3d at 366 (internal quotation and citation omitted).                       Here, we

conclude    that     the    district    court        adequately    explained      its

decision to vary and did not abuse its discretion in varying

upward by twelve months.

            We therefore affirm the district court’s judgment.                     We

dispense    with     oral    argument     because       the   facts     and     legal

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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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