                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4587


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEVEN FION LYONS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-cr-00206-BO-1)


Submitted:   March 16, 2010                 Decided:   March 22, 2010


Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney, Anne 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Unpublished opinions are not binding precedent in this circuit.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:

            Steven Fion Lyons pled guilty to access device fraud,

in violation of 18 U.S.C. §§ 1029(a)(5), (c) (2006) (Count One)

and   aggravated    identity       theft,     in   violation     of       18      U.S.C.

§ 1028A(a)(1) (2006) (Count Two).             Under the properly calculated

advisory Sentencing Guidelines, his range of imprisonment was

twelve to eighteen months on Count One, and the district court

imposed a sentence of forty-eight months for that count.                            The

district court also imposed a consecutive twenty-four month term

of imprisonment on Count Two, as required by statute.                              Lyons

appeals    only    the    district    court’s      variance     on        Count     One,

claiming that the reasons given by the court were not legally

sufficient or procedurally reasonable.

            We review a sentence for reasonableness under an abuse

of discretion standard.        Gall v. United States, 552 U.S. 38, 51

(2007).     This review requires appellate consideration of both

the   procedural    and   substantive        reasonableness     of    a     sentence.

Id.       Procedural     reasonableness       is   determined        by     reviewing

whether the district court properly calculated the defendant’s

advisory    Guidelines     range   and   then      considered   the        18     U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

Id. at 49-51.      “Regardless of whether the district court imposes

an above, below, or within-Guidelines sentence, it must place on

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the   record     an      ‘individualized          assessment’        based     on     the

particular     facts    of    the   case   before     it.”      United       States    v.

Carter,   564    F.3d     325,      330    (4th    Cir.     2009).       Substantive

reasonableness of the sentence is determined by “taking into

account the ‘totality of the circumstances, including the extent

of any variance from the Guidelines range.’”                    United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552

U.S. at 51).

          We     find        the    district      court’s    sentence        was    both

procedurally and substantively reasonable.                    The district court

stated a number of specific reasons supporting its decision to

vary upward on Count One, which reasons were fully supported by

Lyons’ criminal history and the record before the court. *                         Nor do

we find any reversible error in the fact that the district court

denied on the record the Government’s motion to depart after

announcing     its     variance     decision,      especially    given       that     the

      *
       Specifically, the district court stated that its variance
was imposed:    (1) because Lyons had multiple identity theft
crimes over time and other crimes involving theft; (2) to
provide Lyons sufficient time to obtain needed vocational
training; (3) to afford adequate deterrence from further
criminal conduct by removing Lyons from society for a period of
time above that called for by the guidelines range; (4) to
reflect the seriousness of the particular offense; and (5) to
promote respect for the law.      The record demonstrates that
Lyons, whose work history was sporadic and unskilled, had been
convicted of eleven felonies and ten misdemeanors, most of which
involved identity theft; the longest time he had spent in prison
was ten to twelve months.



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court   heard   argument    on    the    upward     departure    motion     prior

imposing the variance sentence.

             Accordingly, we affirm Lyons’ sentence.                  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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