                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4338


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOEL DEVON ARTIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00342-D-1)


Submitted:   January 27, 2014              Decided:   February 12, 2014


Before DAVIS, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, 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Unpublished opinions are not binding precedent in this circuit.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:

            Joel Devon Artis appeals the thirty-six-month sentence

imposed after he pled guilty, pursuant to a plea agreement, to

one count of possession with intent to distribute a quantity of

marijuana,         cocaine,       heroin,            Benzylpiperazine                (BZP),

Trifluoromethylphenylpiperazine                            (MDPPP),                     and

Methylenediozpyrovalerone        (MDPV),        in    violation         of     21   U.S.C.

§ 841(a)(1) (2012).          On appeal, Artis argues that the district

court erred in upwardly departing pursuant to U.S. Sentencing

Guidelines Manual (USSG) § 4A1.3 (2012).                        Specifically, Artis

argues that the court engaged in impermissible double counting

when the conduct that served as the basis for the departure was

also used to impose a three-level enhancement pursuant to USSG

§ 3C1.3    because     he    committed    the        offense     while       on     release

pending sentencing in another case.              We affirm.

            This     court    reviews    a   sentence           for    procedural      and

substantive        reasonableness       under        an     abuse      of      discretion

standard.        Gall v. United States, 552 U.S. 38, 51 (2007).                         The

same   standard     applies    whether    the      sentence       is    “inside,       just

outside, or significantly outside the Guidelines range.”                            United

States    v.     Rivera-Santana,    668      F.3d         95,   100-01       (4th    Cir.)

(internal citation and quotation marks omitted), cert. denied,

133 S. Ct. 274 (2012).         In evaluating procedural reasonableness,

this     court    considers    whether       the      district         court      properly

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calculated the defendant’s advisory Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence,

considered the 18 U.S.C. § 3553(a) (2012) factors, selected a

sentence supported by the record, and sufficiently explained the

selected sentence.         Gall, 552 U.S. at 49-51.

            In     reviewing     any        sentence      outside     the   Guidelines

range,   the     appellate     court        must   give      due    deference    to    the

sentencing       court’s    decision        because     it    has    “flexibility      in

fashioning a sentence outside of the Guidelines range,” and need

only “set forth enough to satisfy the appellate court that it

has considered the parties’ arguments and has a reasoned basis”

for its decision.          United States v. Diosdado-Star, 630 F.3d 359,

364 (4th Cir. 2011).             If the sentence is free of procedural

error,   the     court     reviews     it    for    substantive       reasonableness,

taking into account the totality of the circumstances.                            Gall,

552 U.S. at 51.

            Section      4A1.3    authorizes         an    upward     departure       when

“reliable    information       indicates         that   the   defendant’s       criminal

history category substantially under-represents the seriousness

of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes.”                      USSG § 4A1.3(a)(1), p.s.

The types of information that may support an upward departure

include “[w]hether the defendant was pending trial or sentencing



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on another charge at the time of the instant offense.”                                   USSG

§ 4A1.3(a)(2)(D).

            “Double       counting        occurs    when    a     provision        of     the

Guidelines is applied to increase punishment on the basis of a

consideration      that    has     been    accounted       for   by   application          of

another Guideline provision or by application of a statute.”

United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).

“[T]here is a presumption that double counting is proper where

not expressly prohibited by the guidelines.”                        United States v.

Hampton,    628    F.3d    654,    664     (4th    Cir.    2010).        Section        4A1.3

contains no language addressing, much less prohibiting, double

counting.     See United States v. Rivera-Santana, 668 F.3d 95, 102

(4th   Cir.       2012)    (rejecting        argument       that      district          court

impermissibly      triple    counted       in     departing      under    USSG      § 4A1.3

because     that    section       does     not     prohibit      double       or    triple

counting).     We conclude that the district court did not engage

in   impermissible        double    counting        and    Artis’s       arguments        are

without merit.

            Accordingly, we affirm Artis’s sentence.                         We dispense

with oral argument because the facts and legal contentions are

adequately    presented      in    the     materials       before     this    court       and

argument would not aid the decisional process.

                                                                                   AFFIRMED



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