                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4745


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ZECHARIAH SWITZER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:09-cr-00120-D-1)


Submitted:   March 23, 2011                 Decided:   March 31, 2011


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


Affirmed by unpublished per curiam opinion.


Dennis M. Hart, Washington, D.C., for Appellant. George E. B.
Holding, United States Attorney, Jennifer P. May-Parker, Eric
Evenson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Zechariah        Switzer           appeals           the     eighty-four-month

sentence he received following his guilty plea to use and carry

of   firearms     during      and    in    relation          to,       and    possession        of

firearms    in    furtherance        of,       a   drug     trafficking            offense,     in

violation    of     18    U.S.C.     §    924(c)(1)         (2006).           In    sentencing

Switzer,      the        district        court          added      twenty-four            months’

imprisonment to his advisory sentencing range, which was the

statutory mandatory minimum term of sixty months.                              See 18 U.S.C.

§ 924(c)(1)(A)(i);         U.S.     Sentencing           Guidelines          Manual      (“USSG”)

§ 2K2.4(b)       (2009).       For       the       following       reasons,         we     reject

Switzer’s arguments on appeal and affirm.

            Switzer first posits that, in sentencing him above the

Guidelines range, the court upwardly departed pursuant to USSG

§ 2K2.4    cmt.     n.2(B)    (2009),       and         relied    on    its     finding        that

Switzer committed perjury at sentencing to enhance his sentence

pursuant to USSG § 3C1.1.                  In doing so, Switzer argues, the

district court failed to provide him notice of its intent to

depart,     as    required     by    Fed.          R.    Crim.     P.    32(h),          and   the

opportunity to respond to the factual basis for the departure.




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             However, the district court specifically rejected the

proposition that it was departing upward, 1 stating on the record

that it was imposing a variance sentence.                     Post-Booker, 2 the

district court acted within its discretion in doing so.                        See

generally United States v. Diosdado-Star, 630 F.3d 359, 364 (4th

Cir. 2011) (explaining that, in Rita v. United States, 551 U.S.

338   (2007),   the    Supreme    Court       “recognized   that   a   sentencing

court has flexibility in fashioning a sentence outside of the

Guidelines range”).      As we clarified in United States v. Evans

      [A]dherence to the advisory Guidelines departure
      provisions provides one way for a district court to
      fashion a reasonable sentence outside the Guidelines
      range, it is not the only way.          Rather, after
      calculating the correct Guidelines range, if the
      district court determines that a sentence outside that
      range is appropriate, it may base its sentence on the
      Guidelines departure provisions or on other factors so
      long as it provides adequate justification for the
      deviation.

526 F.3d 155, 164 (4th Cir. 2008).               Because there simply was no

departure in this case, we reject Switzer’s argument pertaining

to the alleged improprieties in the departure procedure.                        We

further     reject    Switzer’s    ancillary       argument    that    the   court


      1
       Switzer correctly identifies that USSG § 2K2.4(b) governed
his offense conduct and that Application Note 2(B) to that
guideline provides that, for sentences imposed pursuant to
subsection (b), “a sentence above the minimum term required by
18 U.S.C. § 924(c) . . . is an upward departure from the
guideline sentence.”
      2
          United States v. Booker, 543 U.S. 220 (2005).



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failed to make the factual findings necessary for an enhancement

pursuant to USSG § 3C1.1.

              Switzer    next    challenges     the    reasonableness        of    his

sentence.      “[N]o matter what provides the basis for a deviation

from the Guidelines range[,] we review the resulting sentence

only for reasonableness.”            Evans, 526 F.3d at 164 (citing Gall

v. United States, 552 U.S. 38, 50 (2007)).                        In doing do, we

apply an abuse of discretion standard.                  Gall, 552 U.S. at 51;

see also United States v. Llamas, 599 F.3d 381, 387 (4th Cir.

2010).        This      review    requires     consideration         of   both     the

procedural and substantive reasonableness of a sentence.                          Gall,

552 U.S. at 51.

              In determining procedural reasonableness, this court

considers     whether     the    district    court    properly      calculated      the

defendant’s advisory Guidelines range, considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

Id.   “Regardless of whether the district court imposes an above,

below,   or    within-Guidelines       sentence,       it    must    place   on    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) (internal quotation marks omitted).                        An

extensive explanation is not required as long as the appellate

court is satisfied “‘that [the district court] has considered

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the parties’ arguments and has a reasoned basis for exercising

[its] own legal decisionmaking authority.’”                         United States v.

Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at

356) (alterations in original), cert. denied, 131 S. Ct. 165

(2010).

              Switzer       maintains       the        district     court       did   not

individually assess his case, as evidenced by its reliance on

its finding that he lied at sentencing to impose an additional

two   years    of     imprisonment.         To    be    sure,     the   court   properly

determined that Switzer’s attempt to minimize and disavow his

criminal conduct supported the variance, but it also identified

several       other        sentencing       factors,         including:         Switzer’s

likelihood       of    recidivism;       the      need     to    impose     a   sentence

sufficient to deter others from engaging in similar conduct and

to protect the public from Switzer’s crimes; and that, in terms

of    Switzer’s        personal      characteristics,             Switzer       did   not

appreciate the seriousness of his conduct.                      The district court’s

explanation reflects its thorough, individualized assessment of

this case in light of the § 3553(a) factors, and was more than

adequate to support the upward variance.                        See United States v.

Grubbs,    585      F.3d   793,    805   (4th     Cir.     2009)    (opining      that   a

“§ 3553(a)-based[]           explanation          of       [defendant’s]        sentence

provides      independent         grounds      for     a   variance       sentence    and



                                            5
verifies the reasonableness of the district court’s sentencing

determination”), cert. denied, 130 S. Ct. 1923 (2010).

            Having determined that there is no procedural error,

we next assess the substantive reasonableness of the sentence.

This inquiry requires us to review “whether the District Judge

abused his discretion in determining that the § 3553(a) factors

supported [the sentence] and justified a substantial deviation

from the Guidelines range.”          Gall, 552 U.S. at 56.           In doing so,

the     court    must   “‘take     into       account    the   totality     of   the

circumstances, including the extent of any variance from the

Guidelines range.’”         United States v. Morace, 594 F.3d 340, 346

(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.

Ct.   307   (2010).        We   discern   no    abuse    of    discretion   in   the

district    court’s     reliance    on    Switzer’s      misrepresentations       at

sentencing and the other identified § 3553(a) factors to support

its decision to vary upward.               See Diosdado-Star, 630 F.3d at

366-67 (holding sentencing court’s decision to impose a sentence

six years longer than advisory Guidelines range was reasonable,

because court employed § 3553-based reasoning to justify the

variance).

             For   these    reasons,      we    affirm   the    district    court’s

judgment.       We dispense with oral argument because the facts and

legal    contentions     are    adequately       presented     in   the   materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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