                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4908


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ANTONIO CAMERON,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00331-BO-1)


Submitted:    July 7, 2009                  Decided:   August 12, 2009


Before MICHAEL, MOTZ, AND SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. George E.B. Holding, United
States Attorney, Ann M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Antonio   Cameron   timely       appeals   from   the   144-month

sentence imposed after his guilty plea pursuant to a written

plea agreement, to one count of possession of fifteen or more

counterfeit and unauthorized access devices, in violation of 18

U.S.C.   §     1029(a)(3)    (2006)     (Count     1),   and    one   count   of

aggravated identity theft, in violation of 18 U.S.C. § 1028A

(2006) (Count 2).         On appeal, Cameron argues that: (1) he was

prejudiced by the district court’s failure to give notice of its

intent   to    sentence   him   above    the    advisory   Guidelines    range;

(2) his sentence is unreasonable; and (3) his case should be

reassigned to another district court judge on remand.                 We affirm

Cameron’s conviction, but vacate his sentence and remand for

resentencing.



                                        I.

              Cameron first asserts that the district court erred by

failing to give him pre-hearing notice, pursuant to Federal Rule

of Criminal Procedure 32(h), that it was considering an upward

variance.      Rule 32(h) requires the sentencing court to give the

parties “reasonable notice” that it is considering a departure

from the applicable Guidelines range “on a ground not identified

for departure either in the presentence report or in a party’s

prehearing submission.”         Fed. R. Crim. P. 32(h).         Cameron relies

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our decision in United States v. Fancher, 513 F.3d 424, 430 (4th

Cir.    2008)    for    the    proposition         that    Rule    32(h)    applies     to

variances.      However, after Fancher, the Supreme Court considered

the same issue, concluding that Rule 32(h) does not apply to

variances.       Irizarry v. United States, 128 S. Ct. 2198, 2202

(2008).       Accordingly, the district court did not err by failing

to     give   Cameron       notice    that    it    was     considering      an    upward

variance.

       Cameron also asserts that the lack of notice violated his

right to due process.           However, the Irizarry Court unambiguously

concluded that “[t]he due process concerns that motivated the

Court to require notice in a world of mandatory Guidelines no

longer     provide      a    basis”    to    extend       Rule    32(h)    to     variance

sentences, since the Guidelines are now advisory.                           Id.      Thus,

Cameron’s due process argument fails.



                                             II.

              Most     of   Cameron’s       remaining      arguments      question    the

reasonableness         of     his     sentence.           Consistent       with    United

States v. Booker, 543 U.S. 220 (2005), the district court is

required to follow a multi-step process at sentencing.                              First,

it must calculate the proper sentencing range prescribed by the

Guidelines.      Gall v. United States, 552 U.S. 38, __, 128 S. Ct.

586, 596 (2007); see also United States v. Abu Ali, 528 F.3d

                                             3
210, 260 (4th Cir. 2008).                   It must then consider that range in

light    of    the    parties’         arguments      regarding           the    appropriate

sentence and the factors set out in 18 U.S.C. § 3553(a) (2006),

before imposing its sentence.                 Gall, 128 S. Ct. at 596; see also

Abu Ali, 528 F.3d at 260.               If the district court determines that

a   sentence       outside   the       Guidelines     is     appropriate,         the   court

“should first look to whether a departure is appropriate based

on the Guidelines Manual or relevant case law.”                              United States

v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006).                            If the district

court    determines      that      a    departure       is   inappropriate,           it    may

impose a variance sentence.                 Id.    We review the district court’s

sentence for abuse of discretion.                   Gall, 128 S. Ct. at 591.

              When reviewing the district court’s sentence, we must

first ensure the district court did not commit any “significant

procedural error,” such as failing to consider the 18 U.S.C.

§ 3553(a) factors or “failing to adequately explain the chosen

sentence – including an explanation for any deviation from the

Guidelines range.”           Id. at 597.              The district court is not

required      to     “robotically           tick    through      §        3553(a)’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 case before it.                       This individualized assessment

need    not    be    elaborate         or    lengthy,      but   it       must    provide    a

                                               4
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) (internal quotation

marks, footnote, and citations omitted).            Further, in imposing a

variance sentence, the district court “must consider the extent

of   the    deviation      and   ensure   that      the    justification     is

significantly compelling to support the degree of the variance.

. . . [I]t [is] uncontroversial that a major departure should be

supported by a more significant justification than a minor one.”

Gall, 128 S. Ct. at 597.

            When imposing Cameron’s sentence, the district court

failed to provide a sufficient, individualized assessment of the

§ 3553(a) factors as required by Carter.              Given the extent of

the upward variance, we find that the district court’s brief

explanation   does   not    adequately    explain    the    reasons   for    the

variance.     See Carter, 564 F.3d at 328-29.                Accordingly, we

conclude that the district court committed procedural error and

thus abused its discretion when imposing sentence. *                  We thus

vacate Cameron’s sentence and remand for resentencing.




     *
       Because we find that Cameron’s sentence is procedurally
unreasonable, we need not consider whether his sentence is
substantively unreasonable. See Gall, 552 U.S. at __, 128 S.
Ct. at 597.



                                      5
                                        III.

            Cameron       requests    that     his    case    be    assigned    to    a

different judge on remand.            The propriety of reassigning a case

depends on:

      (1)   whether the original judge would reasonably be
            expected   upon   remand   to  have   substantial
            difficulty in putting out of his or her mind
            previously expressed views or findings determined
            to be erroneous or based on evidence that must be
            rejected,

      (2) whether reassignment is advisable to preserve the
           appearance of justice, and

      (3)   whether reassignment would entail waste and
            duplication out of proportion to any gain in
            preserving the appearance of fairness.

United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991)

(internal      citation    omitted),     superseded      on    other       grounds   by

statute, United States v. Pridigen, 64 F.3d 147, 150 n.3 (4th

Cir. 1995).       Counsel has conceded that he is not sure Cameron’s

request meets the requirements of Guglielmi.                    Having considered

the   Guglielmi     factors,     we     find    that    it    is    unnecessary      to

reassign this case to a different judge.

            For    the      foregoing      reasons,      we     affirm      Cameron’s

convictions,       but      vacate      his     sentence       and     remand        for

resentencing.      We dispense with oral argument because the facts

and legal conclusions are adequately presented in the materials

before   the    court     and   argument      would    not    aid    the   decisional

process.

                                          6
                AFFIRMED IN PART,
    VACATED IN PART, AND REMANDED




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