                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4596


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANTHONY EARL RIVERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:12-cr-00388-FL-1)


Submitted:   May 19, 2014                     Decided:   May 22, 2014


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Anthony Earl Rivers appeals from his forty-six-month

sentence imposed pursuant to his guilty plea to possession of a

firearm by a convicted felon.                  On appeal, Rivers contends that

the district court erred by (1) failing to order the Government

to   file   a    motion       for    an    additional      one-point     offense     level

reduction for acceptance of responsibility under U.S. Sentencing

Guidelines Manual § 3E1.1(b) (2012); (2) failing to adequately

explain Rivers’ sentence; and (3) imposing an unreasonably harsh

sentence.       We affirm.

                                              I.

             Rivers first argues that the district court erred in

failing to award him an extra one-point reduction for acceptance

of responsibility.             In United States v. Divens, 650 F.3d 343

(4th Cir. 2011), we explained that the Government may not refuse

to make a § 3E1.1(b) motion for reasons other than a defendant’s

failure     to    fulfill       the       prerequisites        listed   therein,     which

include: (1) qualifying for application of § 3E1.1(a), (2) an

offense level of sixteen or greater prior to the application of

§    3E1.1(a),         and     (3)        assisting     the      Government     in     the

investigation          or    prosecution       of   the    defendant’s       offense   by

timely notifying authorities of his intention to plead guilty,

thereby allowing the Government to avoid trial preparation and

permitting       the    efficient         allocation      of    Government    and    court

                                               2
resources.           Id.    at    345-47      (§      3E1.1(b)       does    not   allow   the

Government to refuse to move for the additional reduction solely

because the defendant has declined to perform some other action

beneficial to the Government); see also United States v. Lee,

653 F.3d 170, 173-75 (2d Cir. 2011) (holding that Government

abuses    its    discretion           when   it       refuses   to    make    a    §   3E1.1(b)

motion for reasons that are not closely tied to its avoidance of

preparing for trial).                 Thus, if the Government’s refusal to make

a motion for the third § 3E1.1 downward departure point is based

on something other than the fact that the defendant’s failure to

timely accept responsibility required the Government to prepare

for trial, the district court has the authority to order the

Government to file a motion for reduction.                           See Divens, 650 F.3d

at 350.

            Here, the Government averred that it chose not to file

the   motion     because         it    had   fully      prepared      for    trial.      While

Rivers disputes how complete the Government’s trial preparation

was prior to his plea, he does not dispute that the Government

chose not to file a § 3E1.1(b) motion because it believed that

Rivers’ delay in pleading guilty caused it to expend time and

resources       in   developing         readiness        for    trial.        In   fact,    the

Government informed Rivers when its trial preparation was about

to begin and warned Rivers that he needed to plead guilty prior

to that time.              Rivers, however, delayed his guilty plea for

                                                  3
nearly two more months until a week prior to trial.                           We conclude

that,     because      the   Government’s          refusal    to   make     the    disputed

motion was based on a permissible reason, the court lacked the

authority to order the Government to file the motion.                              See USSG

§ 3E1.1 cmt. n. 6 (“[T]he Government is in the best position to

determine whether the defendant has assisted authorities in a

manner that avoids preparing for trial ....”); see also Divens,

650     F.3d     at    346   (“[T]he         Government      retains       discretion     to

determine whether the defendant's assistance has relieved it of

preparing for trial.”).                Accordingly, Rivers’ claim is without

merit.

                                              II.

               Rivers next contends that the district court did not

provide sufficient reasoning for the above-Guidelines sentence. 1

We must ensure that the district court adequately explained the

sentence       imposed.         Gall    v.    United   States,      552     U.S.    38,   51

(2007).        The district court is not required to “robotically tick

through        [18    U.S.C.]     §    3553(a)      [2012]’s       every      subsection.”

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).

However,       the    district        court    “must    place      on   the    record     an

‘individualized assessment’ based on the particular facts of the


      1
       Rivers’ Guidelines range was thirty to thirty-seven months
in prison.



                                               4
case    before     it.     This    individualized          assessment          need    not    be

elaborate or lengthy, but it must provide a rationale tailored

to     the   particular        case     at     hand       and     adequate       to     permit

‘meaningful appellate review.’”                     United States v. Carter, 564

F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50)

(internal citation and footnote omitted)).                            Because Rivers did

not argue for a specific sentence, we review for reasonableness

under a plain error standard.                  United States v. Lynn, 592 F.3d

572, 576-77 (4th Cir. 2010).

             Our     review       of    the       sentencing          hearing     transcript

reveals      that        the   district           court     provided        a      detailed,

individualized explanation to support its sentence.                             Contrary to

Rivers’ contentions, the court addressed the specific sentencing

factors in Rivers’ case, including the details of his offense,

his criminal background, and the need for treatment.                              Moreover,

the court specifically tied the facts of Rivers’ case to the

purposes of sentencing outlined in § 3553.                            As such, there was

no procedural error in the court’s explanation of sentence.

                                             III.

             Rivers asserts that the district court’s imposition of

an     upward      variance       rendered          his     sentence        substantively

unreasonable        because     the     court       failed       to     account       for    his

difficult       upbringing        and    failed       to        provide    a      sufficient

justification, rendering Rivers’ sentence greater than necessary

                                              5
to fulfill the purposes of sentencing.                     When the district court

imposes a variance sentence, we “consider whether the sentencing

court    acted    reasonably     both   with          respect   to   its    decision    to

impose such a sentence and with respect to the 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.

United    States    v.   Diosdado-Star,          630     F.3d   359,   366    (4th    Cir.

2011).     We will affirm if “the § 3553(a) factors, on the whole,

justified the sentence” imposed.                 Id. at 367 (internal quotation

marks omitted).

            We find that Rivers’ argument is without merit.                            The

district court acknowledged Rivers’ background and childhood and

balanced that against the seriousness of his offense and his

danger to society.         In subsequently imposing a variance sentence

based     upon    the    totality      of       the     circumstances,       the     court

emphasized the need to not trivialize Rivers’ conduct and to

deter future criminal behavior.                  In so doing, the court noted

Rivers’     failure      to    fully    accept          responsibility,       his     gang

membership, 2 the danger inherent in his criminal offense, the


     2
       In his reply brief, Rivers denies that he is a member of a
gang.    However, the district court overruled his objection
below, and Rivers provides no evidence undermining the district
court’s factual finding that Rivers belonged to a gang.



                                            6
obstruction involved in his offense, and the need for treatment.

These     considerations           speak          directly        to    several          §    3553(a)

factors.

             While Rivers avers that his sentence was greater than

necessary to comply with the statutory factors, we do not review

a   sentence      to      determine          if    it     is     greater      than       necessary;

instead, we review a sentence for reasonableness and an abuse of

discretion,       and     more     than       one       sentence       can    be    substantively

reasonable.         United States v. Martin, 520 F.3d 87, 92 (1st Cir.

2008) (citation omitted) (“[T]here is not a single reasonable

sentence      but,        rather,        a        range     of     reasonable            sentences.

Consequently, reversal will result if-and only if-the sentencing

court's      ultimate       determination               falls     outside          the       expansive

boundaries     of      that     universe.”).               Given       the    district         court’s

consideration        of     the    parties’             arguments       and    the       §    3553(a)

sentencing factors, and its articulation of appropriate reasons

warranting an upward variance, we defer to the district court’s

determination as to the extent of the variance and find Rivers’

sentence     to     be    substantively             reasonable.              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. 2403 (2013); Diosdado-Star,

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



                                                    7
greater than Guidelines range because sentence was based on the

district court’s examination of relevant § 3553(a) factors).

           Based on the foregoing, we affirm Rivers’ sentence.

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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