                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 09-3475


                            UNITED STATES OF AMERICA,


                                             v.

                                   ARIEL VARSANYI,
                                    also known as “A”
                                                      Appellant


                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Criminal No. 3:08-CR-86)
                       District Judge: Honorable James M. Munley


                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     July 16, 2010

                    Before: FUENTES, VANASKIE, Circuit Judges,
                           and DITTER,* Senior District Judge.

                                 (Filed: August 25, 2010)




                               OPINION OF THE COURT




       *
         Honorable J. William Ditter, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
VANASKIE, Circuit Judge.

       Appellant Ariel Varsanyi pleaded guilty to possession with intent to distribute in

excess of 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).1 The District

Court sentenced Varsanyi to 132 months imprisonment, an eleven (11) month upward

variance from the top of the advisory guidelines range. Varsanyi now appeals, claiming

his sentence was procedurally and substantively unreasonable. Because we find no error,

we will affirm.

                                              I.

       As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

       On November 27, 2007, Pennsylvania State Police Troopers pulled over a vehicle

in Nanticoke, Pennsylvania, driven by Meghan Fox. The troopers discovered that Ms.

Fox did not have a valid driver’s license and that the vehicle was registered to Varsanyi,

who was seated in the front passenger seat. Another passenger, Virginia Thompson, was

in the back seat.

       During the traffic stop, Varsanyi exited the vehicle and fled the scene. While

being chased by a state trooper, Varsanyi discarded a plastic bag that was recovered by

the trooper. The bag contained 63.4 grams of cocaine base (crack). Moreover, a trooper




       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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observed Ms. Fox exit the vehicle, walk about fifteen (15) feet to an open field, and then

return to the vehicle. A trooper recovered a .38 caliber revolver from the area in the open

field to which Fox had walked.

       On May 21, 2008, Varsanyi was arrested in South Carolina, and subsequently

returned to the Middle District of Pennsylvania. On November 4, 2008, he entered a

guilty plea to possession with intent to distribute more than 50 grams of crack cocaine.

Varsanyi’s advisory guidelines imprisonment range was determined to be 97 to 121

months. Because Varsanyi pled guilty to a charge that carried a mandatory ten-year

prison term, however, his advisory guidelines imprisonment range was adjusted to be 120

to 121 months. Varsanyi does not contest this determination.

       The Probation Office submitted a Second Addendum to the Presentence

Investigation Report on August 11, 2009. The Second Addendum stated that, on July 8,

2009, a Larksville, Pennsylvania police officer attempted to conduct a traffic stop of a

speeding vehicle. The police officer eventually located the vehicle in Edwardsville,

Pennsylvania, but without the vehicle’s driver, who had fled the scene. A search of the

automobile produced mail addressed to Varsanyi, and revealed that the vehicle was leased

in his name. A citation was filed, charging Varsanyi with Fleeing or Attempting to Elude

Police Officers, Speeding, and Driving without a License. These charges were pending at

the time of his sentencing by the District Court.

       On August 12, 2009, the District Court sentenced Varsanyi to 132 months



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imprisonment, an eleven (11) month upward variance from the top of the advisory

guidelines range. In imposing a sentence above the advisory guidelines range, the District

Court explained that it had taken into consideration the fact that the crime of conviction

involved a firearm, that Varsanyi’s past convictions involved firearms, that additional

criminal charges had been filed against Varsanyi while he was under pretrial supervision,

and that Varsanyi had an extensive history of substance abuse. Varsanyi argues on appeal

that the District Court did not articulate an adequate “justification for varying upward

from the advisory guideline range.” (App’t’s Br. 15.)

                                             II.

       We have held that, in light of United States v. Booker, 543 U.S. 220 (2005), a

sentencing court must follow a three-step sequential process: first, determine a

defendant’s advisory sentencing guidelines range; second, formally rule on motions from

both parties, and state on the record whether a departure is being granted and how

granting the motion affects the advisory guidelines range; and third, exercise discretion by

considering the relevant section 3553(a) factors in imposing the appropriate sentence.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc); United States v.

Gunter, 462 F.3d 237, 247 (3d Cir. 2006).

       “Our appellate review proceeds in two stages.” Tomko, 562 F.3d at 567. First, we

ensure “that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as



                                              3
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence – including an

explanation for any deviation from the Guidelines range.” Id. (quoting Gall v. United

States, 552 U.S. 38, 50 (2007)). If the district court’s procedure is satisfactory, we move

to stage two and consider the substantive reasonableness of the sentence. Id. (citing

United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008)). Our substantive review

takes into consideration the totality of the circumstances, rather than one or two factors.

Id. “Indeed, we cannot presume that a sentence is unreasonable simply because it falls

outside the advisory Guidelines range.” Id.

       The abuse-of-discretion standard governs both the procedural and substantive

reasonableness inquiries. Id. “We afford deference to the District Court because it is in

the best position to determine the appropriate sentence in light of the particular

circumstances of the case.” United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006)

(quotation and citation omitted). The party challenging the sentence has the burden of

demonstrating a procedural error or an abuse of discretion. Tomko, 562 F.3d at 567.

       Varsanyi’s appeal concerns only the third step in the sentencing process. He

claims both procedural and substantive error by the District Court in exercising its

discretion to impose a prison term of 132 months.

       Our review of the record reveals no procedural error. In this regard, the record

demonstrates that the District Court gave “meaningful consideration” to the section



                                              4
3553(a) factors and articulated a rational basis for the sentence imposed. See United

States v. Starnes, 583 F.3d 196, 215 (3d Cir. 2009) (procedurally reasonable sentence

“must reflect a district court’s meaningful consideration of the factors set forth at 18

U.S.C. § 3553(a)”) (quoting United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007)).

         The District Court noted that Varsanyi’s criminal record contained convictions for

aggravated assault, receiving stolen property, and false identification. In response to the

Public Defender’s representation that Varsanyi had been a model citizen while on

supervised release, the District Court pointed to the July 8, 2009 Larksville incident,

where Varsanyi evaded a police officer who was attempting to pull him over, and then

fled his vehicle. The District Court plainly considered all relevant section 3553(a)

factors, including the nature and circumstances of the offense as well as Varsanyi’s

history and characteristics. The District Court expressed its opinion that Varsanyi was

likely to recidivate. That the District Court may have given particular weight to the need

to deter criminal conduct and to protect the public from further criminal activity by

Varsanyi does not mean that it failed to give meaningful consideration to all § 3553(a)

factors. Thus, Varsanyi has failed to show procedural error on the part of the District

Court.

         “[A]bsent any significant procedural error, we must ‘give due deference to the

district court's determination that the § 3553(a) factors, on a whole,’ justify the sentence.”

Tomko, 562 F.3d at 568 (quoting Gall, 552 U.S. at 51). “[A] major departure should be



                                              5
supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50. In

this case, the District Court departed upwards only by eleven months above the advisory

guidelines range, and by one year above the mandatory minimum prison term. Only if it

could be said that “no reasonable sentencing court would have imposed the same sentence

on [Varsanyi] for the reasons the district court provided,” Gall, 552 U.S. at 51, could the

sentence be said to be unreasonable. Because such a finding cannot be made here,

Varsanyi has failed to show that his sentence is substantively unreasonable.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s sentence.




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