                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4664


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SANTOS ANIBAL CABALLERO FERNANDEZ, a/k/a Garra,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:08-cr-00134-RJC-DSC-23)


Submitted:   July 29, 2014                  Decided:    August 8, 2014


Before TRAXLER,   Chief   Judge,   and   DIAZ   and   THACKER,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


David Q. Burgess, LAW OFFICE OF DAVID Q. BURGESS, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Santos          Anibal            Caballero          Fernandez         (“Caballero

Fernandez”) appeals the sentence imposed following the reversal

of    one   conviction            and    the     remand      for     resentencing       on    his

remaining convictions.                  For the reasons that follow, we affirm.

             A federal grand jury charged Caballero Fernandez and

twenty-five other members of the worldwide street gang MS-13

with    various      gang-related              crimes.       In     Caballero       Fernandez’s

case, a jury convicted him of conspiracy to commit racketeering,

in     violation       of    18     U.S.C.       §    1962(d)       (2012)     (Count       One),

possession      of     a    firearm       by    an    illegal       alien    and    aiding    and

abetting the same, in violation of 18 U.S.C. §§ 922(g)(5), 2

(2012) (Count Eight), and accessory after the fact to murder in

aid of racketeering, in violation of 18 U.S.C. §§ 3, 1959 (2012)

(Count      Fifty-Three).                 On     appeal,       we     affirmed        Caballero

Fernandez’s        conspiracy             to     commit       racketeering          conviction,

reversed     his       accessory-after-the-fact-to-murder                     conviction      on

the    ground     that      the     evidence         was    insufficient       to    show    that

Caballero Fernandez knew the victim was dead or dying during the

relevant time period, and remanded for resentencing.

             At    the      resentencing          hearing,        after     determining      that

there    were     no       objections,         the    court     adopted      the     Guidelines

calculations         in     the    supplemental            presentence      report    (“PSR”),

which established a Guidelines range of seventy to eighty-seven

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months’ imprisonment.              Defense counsel argued for a sentence

within this range, noting that the original sentence had been

within the original 135 to 168 month Guidelines range.                             After

listening to the parties’ arguments and Caballero Fernandez’s

allocution,     the       district     court       imposed     an    upward     variance

sentence of 135 months on the conspiracy to commit racketeering

conviction      (Count      One)      and    a    concurrent        120   months    (the

statutory maximum) on the firearm conviction (Count Eight).

           In      this     appeal,    Caballero        Fernandez     challenges       the

district court’s finding, for sentencing purposes, that he aided

and abetted the murder that was the subject of his reversed

accessory-after-the-fact              conviction         and        the    substantive

reasonableness of the upward variance.                   We review a sentence for

procedural     and    substantive       reasonableness         under      an   abuse    of

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

(2007).      The     same    standard       applies     whether     the   sentence      is

“inside, just outside, or significantly outside the Guidelines

range.”    United States v. Rivera-Santana, 668 F.3d 95, 100-01

(4th   Cir.)    (internal      citation          and   quotation     marks     omitted),

cert. denied, 133 S. Ct. 274 (2012).                    In determining procedural

reasonableness, we consider whether the district court properly

calculated the defendant’s advisory Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence,

considered the 18 U.S.C. § 3553(a) (2012) factors, selected a

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sentence supported by the facts, and sufficiently explained the

selected sentence.          Gall, 552 U.S. at 49-51.

              If the sentence is free of procedural error, we review

it for substantive reasonableness.                        Id. at 51.           “Substantive

reasonableness examines the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).”       United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th    Cir.     2010).          In    reviewing      any    sentence      outside        the

Guidelines       range,     we    give    due      deference       to    the    sentencing

court’s decision because it “has flexibility in fashioning a

sentence outside of the Guidelines range,” and need only “‘set

forth    enough    to     satisfy       the    appellate         court   that     [it]    has

considered the parties’ arguments and has a reasoned basis’” for

its decision.         United States v. Diosdado-Star, 630 F.3d 359, 364

(4th Cir. 2011) (quoting Rita v. United States, 551 U.S. 338,

356 (2007) (alteration in original)).

              The district court imposed an upward variance sentence

based    in    part    on   its       finding      that    Caballero      Fernandez       was

involved in the murder of Ulisses Mayo.                            Caballero Fernandez

challenges that finding, emphasizing that Mayo’s murder was the

subject of his reversed accessory-after-the-fact conviction.                               A

factual finding is clearly erroneous if “the reviewing court on

the     entire    evidence        is    left       with    the     definite      and     firm

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conviction that a mistake has been committed.”                    United States v.

Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation

marks omitted).          “[A] sentencing court may consider uncharged

and acquitted conduct in determining a sentence, as long as that

conduct is proven by a preponderance of the evidence.”                        United

States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).

            Our review of the record leads us to conclude that the

district court did not clearly err in finding by a preponderance

of the evidence that Caballero Fernandez aided and abetted the

murder.      Furthermore,        as    relevant      to    Caballero    Fernandez’s

history     and    characteristics        and      other   § 3553(a)     sentencing

factors,     we    conclude      the     district     court    did     not   err   in

considering Caballero Fernandez’s involvement in the murder in

imposing the variance.            United States v. Overstreet, 713 F.3d

627, 638 n.14 (11th Cir. 2013); see also United States v. Rhine,

637 F.3d 525, 528–29 (5th Cir. 2011) (holding that a district

court may consider criminal activity of a defendant that was not

relevant conduct as part of the history of the defendant), cert.

denied, 132 S. Ct. 1001 (2012).

            Next, Caballero Fernandez challenges the extent of the

variance.     When the district court imposes either a variance or

a   departure      sentence,      this     court     “consider[s]      whether     the

sentencing       court   acted    reasonably       both    with   respect    to    its

decision    to    impose   such    a     sentence    and   with   respect    to    the

                                           5
extent of the divergence from the sentencing range.”                                  United

States   v.    Hernandez-Villanueva,               473   F.3d    118,      123    (4th    Cir.

2007).           A     greater         variance      requires        more        substantial

justification.         Diosdado-Star, 630 F.3d at 366.                  This Court will

affirm if the § 3553(a) factors, on the whole, justified the

sentence imposed.            Id. at 366.

              Here, in finding that a sentence consisting of 135

months on Count One and a concurrent 120 months (the statutory

maximum)    on       Count    Eight      was   sufficient    but     not    greater       than

necessary     to      accomplish         the   § 3553(a)    sentencing           goals,    the

district    court       took      into    account    Caballero       Fernandez’s         prior

firearm offense, his membership and involvement in a violent

gang, his role in the first degree murder of Mayo (which the

district court found was part of the racketeering conspiracy for

which Caballero Fernandez was convicted), his intimidation of a

witness to that murder, and the fact that a month after the

murder Caballero Fernandez was found with gang members in a car

with several firearms including the murder weapon shortly after

a home invasion.

              All     of     these       considerations         by   the      court      speak

directly      to      several      §     3553(a)     factors.           See      18   U.S.C.

§ 3553(a)(1) (“the nature and circumstances of the offense and

the history and characteristics of the defendant”); 18 U.S.C.

§   3553(a)(2)(A)          (the    need    for     the   sentence     “to     reflect      the

                                               6
seriousness of the offense, to promote respect for the law, and

to provide just punishment”); 18 U.S.C. § 3553(a)(2)(B) (the

need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the

need   “to    protect        the    public       from    further        crimes   of    the

defendant”).

             Given     the     district      court’s       consideration         of     the

parties’ arguments and the § 3553(a) sentencing factors, and its

articulation of reasons warranting an upward variance, we defer

to the district court’s determination as to the extent of the

variance.     United States v. Hargrove, 701 F.3d 156, 163-64 (4th

Cir. 2012) (affirming variance from zero-to-six-month Guidelines

range to sixty-month sentence), cert. denied, 133 S. Ct. 1862

and cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 630

F.3d at 366-67 (affirming variance sentence six years greater

than Guidelines range because sentence was based on the district

court’s examination of relevant § 3553(a) factors); see also

United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) (“All

that   matters    is    that       the   sentence       imposed    be    reasonable     in

relation to the ‘package’ of reasons given by the court.”).                              We

conclude that the district court acted reasonably in imposing

Caballero Fernandez’s variance sentence.

             Accordingly, we affirm Caballero Fernandez’s sentence.

We   dispense    with    oral      argument      because     the    facts    and      legal



                                             7
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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