                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4923


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARTIN KALCHSTEIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00057-FDW-1)


Submitted:   June 28, 2010                 Decided:   July 21, 2010


Before DUNCAN, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina; Lanny A. Breuer, Assistant Attorney General, Roanoke,
Virginia; Ellen R. Meltzer, Patrick M. Donley, Peter B.
Loewenberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Martin Kalchstein pled guilty to failure to surrender

for     service     of    the    sentence          imposed      in     United      States      v.

Kalchstein, No. 3:06-cr-00151-FDW-6 (W.D.N.C. Nov. 7, 2008), * in

violation      of     18 U.S.C. § 3146(a)(2) (2006),                   and      contempt       of

court, in violation of 18 U.S.C. § 401(3) (2006).                               The district

court       sentenced          Kalchstein          to     seventy-two             months       of

imprisonment, an upward variance of more than five times the top

of    the    advisory      sentencing          guidelines        range.           On    appeal,

Kalchstein        contends      that     his       sentence       is     unreasonable          and

greater     than    necessary       to    serve         the    purposes      of    18     U.S.C.

§ 3553(a) (2006).         Finding no reversible error, we affirm.

             We review a sentence, “whether inside, just outside,

or    significantly       outside        the    [g]uidelines           range,”         under   an

abuse-of-discretion standard.                  Gall v. United States, 552 U.S.

38, 41 (2007).           This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                                 Id. at

51.       “Procedural reasonableness evaluates the method used to

determine a defendant’s sentence.”                        United States v. Mendoza-

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).                               This court must

assess      whether      the    district        court         properly    calculated           the


      *
       Kalchstein’s underlying convictions were for conspiracy to
defraud the United States and two counts of wire fraud.



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advisory guidelines range, considered the factors set forth in

§ 3553(a), analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                         Gall, 552 U.S. at

49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010)   (“[A]n     individualized            explanation      must     accompany       every

sentence.”); United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009).

            If there is no procedural error, the appellate court

reviews     the      substantive        reasonableness          of      the     sentence,

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

including    the     extent   of       any    variance     from       the    [g]uidelines

range.”     United States v. Morace, 594 F.3d 340, 346 (4th Cir.

2010) (internal quotation marks and citation omitted).                            “Where,

as here, the district court decides that a sentence outside the

advisory range is appropriate, [the court] ‘must consider the

extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.’”

Id. (quoting Gall, 552 U.S. at 50).                 “A major departure from the

advisory    range     ‘should      be    supported       by     a     more     significant

justification than a minor one.’”                  Id. (quoting Gall, 552 U.S.

at   50).     In   reviewing       a    variance    sentence,         this     court    “may

consider    the      extent   of       the     deviation,       but     must    give     due

deference to the district court’s decision that the § 3553(a)



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factors, on a whole, justify the extent of the variance.”                              Gall,

552 U.S. at 51.

            With    these     standards          in     mind,        we    have     reviewed

Kalchstein’s      sentence    and     find       that    it     is    procedurally         and

substantively reasonable.            Kalchstein asserts that the district

court committed procedural error in finding that he planned to

flee well before he was required to report to serve his sentence

and intentionally committed fraud in the process.                           Our review of

the record leads us to conclude that a preponderance of the

evidence supports the district court’s conclusions.                               See United

States v. Dean, 604 F.3d 169, 173 (4th Cir. 2010) (“Sentencing

judges may find facts relevant to determining a [g]uidelines

range by a preponderance of the evidence . . . .”) (internal

quotation marks and citation omitted).

            Kalchstein       also    asserts          that    the         above-guidelines

sentence    imposed    by     the     district          court        was    greater       than

necessary    to    serve    the     purposes       of    § 3553(a)          and    therefore

substantively      unreasonable.            He    contends       that        the    district

court’s     consideration      of     his        remorse      during        the     original

sentencing proceedings was irrelevant to the selection of the

sentence    imposed   in     this    case.         We   find,        however,      that    the

district court properly considered the lenient sentence imposed

for the underlying convictions, Kalchstein’s lack of remorse,

and his repeated deceptive and manipulative conduct in making

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the    premeditated      decision     to       flee   to     avoid       serving     that

sentence.     See United States v. Douglas, 569 F.3d 523, 528 (5th

Cir. 2009) (finding no error in “sentencing [defendant] to an

above-range non-[g]uideline[s] sentence based on its assessment

of    the   § 3553(a)    factors,        including        its    finding      that     the

defendant    lacked     remorse     for    his    crime”);           United   States    v.

Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (finding no abuse

of discretion where court considered fact that defendant “had

repeatedly    betrayed     the     trust       reflected        in    [prior]   lenient

sentences” when sentencing defendant for violating conditions of

his probation).         Thus, we find no abuse of discretion in the

district    court’s     decision    to     impose     a    sentence      significantly

above the advisory guidelines range.

             Accordingly, we affirm the district court’s judgment.

We deny Kalchstein’s motion to file a pro se supplemental brief

and 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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