                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4778


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

COURTNEY HARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge. (2:09-cr-00002-jpj-pms-1)


Submitted:   July 20, 2010                 Decided:   August 6, 2010


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Debbie H.
Stevens, Special Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Courtney     Harris,       a     federal          inmate,       pleaded      guilty

without a plea agreement to ten counts of indecent exposure, in

violation of 18 U.S.C. § 13 (2006) and Va. Code Ann. § 18.2-387

(2009).        The     district        court         calculated           Harris’        advisory

Guidelines range at 24 to 30 months’ imprisonment.                                     See U.S.

Sentencing Guidelines Manual (2008).                           The Government moved under

18    U.S.C.    § 3553(a)        (2006)       for    an        upward    variance,         and   the

district   court       granted      the       Government’s            motion    and   sentenced

Harris to 60 months’ imprisonment.                             Harris appeals, asserting

three grounds to vacate his sentence: first, that the district

court    failed       to   specify     whether            it    was     imposing      an    upward

variance or an upward departure; second, that the court failed

to adequately explain its rationale for imposing the sentence;

and    third,    that      the    sentence          is    substantively          unreasonable.

Finding no error, we affirm.

               This    court      reviews       the       district       court’s      sentence,

“whether       inside,     just    outside,          or    significantly          outside        the

Guidelines       range,”       under      a    “deferential             abuse-of-discretion

standard.”       Gall v. United States, 552 U.S. 38, 41 (2007).                                  This

review entails appellate consideration of both the procedural

and substantive reasonableness of a sentence.                               Id. at 51.             In

determining procedural reasonableness, we first assess whether

the district court properly calculated the defendant’s advisory

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Guidelines range.               Id. at 49, 51.            We then consider whether the

district court treated the Guidelines as mandatory, failed to

consider       the    18    U.S.C.       § 3553(a)         factors     and     any    arguments

presented by the parties, selected a sentence based on “clearly

erroneous facts,” or failed to explain sufficiently the selected

sentence.       Id. at 50-51; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).               We also review whether the district court

made     “an     individualized             assessment           based       on      the        facts

presented.”          Gall, 552 U.S. at 50; see United States v. Carter,

564    F.3d    325,       330    (4th    Cir.     2009)     (holding         that,    while      the

“individualized             assessment           need       not        be      elaborate          or

lengthy, . . . it           must        provide       a   rationale         tailored       to    the

particular      case . . . and            [be]        adequate    to     permit       meaningful

appellate review” (internal quotation marks omitted)).

               When       reviewing       for     substantive          reasonableness,            we

“take into account the totality of the circumstances, including

the extent of any variance from the Guidelines range.”                                          Gall,

552 U.S. at 51.             We “may consider the extent of the deviation

[from    the    recommended         Guidelines            range],      but    must     give      due

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

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

see United States v. Whorley, 550 F.3d 326, 342-43 (4th Cir.

2008), cert. denied, 130 S. Ct. 1052 (2010).                                Even if we would

have    imposed       a    different      sentence,        this     fact      alone    will      not

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justify    vacatur      of    the    district          court’s       sentence.            Whorley,

550 F.3d at 342.

               Harris    first      challenges          his    sentence      on      the    ground

that the district court failed to specify whether the 60-month

sentence       resulted      from         an    upward        variance       or      an    upward

departure.          Whether the district court has imposed a departure

or    variance       from    the    suggested          Guidelines        range       has       “real

consequences for an appellate court’s review” of the sentence

imposed.       United States v. Brown, 578 F.3d 221, 226 (3d Cir.

2009).     Indeed, the “permissible factors justifying traditional

departures      differ      from     --    and       are   more     limited       than     --    the

factors    a    [district]         court       may   look     to    in   order       to    justify

a . . . variance.”           United States v. Hampton, 441 F.3d 284, 288

n.2   (4th     Cir.     2006).        As       departures          are   thus     “subject       to

different requirements than variances,” United States v. Floyd,

499 F.3d 308, 311 (3d Cir. 2007), it is important for district

courts to “articulate whether a sentence is a departure or a

variance from an advisory Guidelines range,” Brown, 578 F.3d at

226 (internal quotation marks omitted).                            Because Harris did not

raise this issue in the district court, our review is for plain

error.     See Puckett v. United States, 129 S. Ct. 1423, 1428-29

(2009).

               We    conclude       that       Harris       has     failed      to    establish

procedural      error,      much     less       plain      procedural      error,         in    this

                                                 4
regard.    The     Government    sought      an   upward   variance   from   the

Guidelines range based on certain § 3553(a) factors, and the

district court granted the Government’s motion, stating in its

written order that it varied above the Guidelines range based on

relevant   § 3553(a)     factors.           Although    the   district   court

misspoke at the sentencing hearing, erroneously characterizing

its sentence as an upward departure, it is clear from the record

that the court imposed a variant sentence. *

           Harris also claims that the district court failed to

explain its decision to impose the 60-month variant sentence and

that the sentence is substantively unreasonable.                  We disagree.

The district court heard argument from Harris’s counsel on the

appropriate sentence, allowed Harris an opportunity to allocute,

and   thoroughly    considered    the       § 3553(a)   factors   relevant   to

Harris in imposing the 60-month sentence.               We have reviewed the

record and conclude that the district court adequately explained


      *
       Moreover, even if we were to assume that the district
court’s oral    mischaracterization   of  the  sentence  somehow
constituted an obvious error, Harris still bears the burden of
showing that such error had a prejudicial effect on the sentence
imposed.   See Puckett, 129 S. Ct. at 1429, 1433 n.4.     In the
sentencing context, an error is prejudicial if the defendant can
show “that, absent the error, a different sentence might have
been imposed.”   United States v. Hernandez, 603 F.3d 267, 273
(4th Cir. 2010). Harris fails to make this showing, as he does
not suggest that the district court’s mischaracterization had
any effect on the sentence imposed or that, but for it, a
different sentence might have been imposed.



                                        5
its   rationale      for    imposing      the    variant    sentence,       that   the

sentence    was     “selected     pursuant       to    a   reasoned    process      in

accordance with law,” and that the reasons relied upon by the

district court are plausible and justify the sentence imposed.

Pauley,    511    F.3d     at   473-76;    see    Carter,    564     F.3d    at    330.

Although    Harris       argues   that    a     60-month    prison    sentence      is

“unreasonably long,” we afford “due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.”           Gall, 552 U.S. at 51.

            Thus,    we    conclude      that    the   district    court     did   not

abuse its discretion in sentencing Harris.                  We therefore affirm

the district court’s judgment.                 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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