                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4541



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CHESTER GRIFFITHS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:06-cr-00388-JFM)


Submitted:   July 31, 2008               Decided:   September 5, 2008


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky,
for Appellant. Rod J. Rosenstein, United States Attorney, Kwame J.
Manley, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Chester   Griffiths    pled     guilty   to   possession    of   100

kilograms marijuana with intent to distribute, in violation of 21

U.S.C. § 841(a)(1) (2000).        The district court varied upward from

the guideline range of 120 months and imposed a sentence of 180

months.    Griffiths contends on appeal that (1) the district court

erred in varying upward from the guideline range pursuant to 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); (2) the extent of the

variance was unreasonable; and (3) the court plainly erred in

failing to give him notice of a possible variance.              We affirm.

            In June 2006, Griffiths was found driving a Jeep in

Maryland with a suspended registration and an expired driver’s

license.    The Jeep contained 157 kilograms of marijuana, which was

worth about $400,000, and $1820 in cash.             At Griffiths’ home in

Baltimore, police found $2324 in cash, two scales, and a plastic

bag   of   white   powder.*   Because       Griffiths     had   a   prior    drug

conviction, he was subject to a ten-year mandatory minimum sentence

under § 841(b)(1)(B).     At some point before he entered his guilty

plea, Griffiths moved for a ruling on whether he was a career

offender. After a hearing, the district court ruled that Griffiths

was not a career offender.        Griffiths subsequently pled guilty to

the instant offense.




      *
       The record does not reveal what the white powder was.

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             Despite      the     court’s   ruling,      the     probation      officer

recommended in the presentence report that Griffiths qualified for

sentencing as a career offender, with an advisory guideline range

of    262-327 months.        Before sentencing, the government indicated

its   intention     to    seek    an   upward     departure      to    a   fifteen-year

sentence    based    on     under-representation         of     Griffiths’     criminal

history.     See U.S. Sentencing Guidelines Manual § 4A1.3, p.s.

(2006).      The government explained that it believed Griffiths

qualified for sentencing as a career offender, but acknowledged the

court’s ruling that he was not a career offender, and that the

ruling effectively reduced the guideline range to the mandatory

minimum sentence of 120 months.             See USSG § 5G1.1(b).

             At sentencing, the court imposed a 180-month sentence,

explaining    that     it   was    a   variance,    not    the     criminal     history

departure requested by the government.               The court stated that the

variance was appropriate under 18 U.S.C.A. § 3553 (West 2000 &

Supp. 2008) because (1) the offense was a serious one, given that

the marijuana was worth $400,000; (2) Griffiths’ history and

characteristics indicated that he had not been able to conform his

conduct to the law; and (3) the length of the sentence was

necessary    to     promote      respect    for    the    law    and       provide   just

punishment.

             On appeal, Griffiths argues that the court erred by

imposing a variance sentence because the drug amount and his


                                        - 3 -
criminal history were already considered and accounted for in the

calculation of the guideline range.           He also contends that the

extent of the variance was unreasonable. Last, Griffiths maintains

that the district court plainly erred in failing to give him notice

that it was considering an upward variance, with the result that he

was not prepared to confront the issue at sentencing.

          First,     we   note    that   Griffiths   was    aware    that   the

government   would    seek   an    upward   departure      based    on   under-

representation of his criminal history, but he was not given notice

that the court might vary from the guideline range.                      Because

Griffiths did not object in the district court to the lack of

notice concerning the variance, this issue is reviewed for plain

error.   United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

2007).    Rule 32(h) of the Federal Rules of Criminal Procedure

requires the sentencing court to give the parties reasonable notice

when it is considering a departure on a ground not identified as a

possible basis for departure either in the presentence report or in

a party’s prehearing submission.         However, the Supreme Court held

in Irizarry v. United States, 128 S. Ct. 2198 (2008), that upward

variances do not require notice under either Rule 32(h) or Burns v.

United States, 501 U.S. 129 (1991).         Irizarry, 128 S. Ct. at 2203.

Therefore, no error occurred.




                                    - 4 -
            In Gall v. United States, 128 S. Ct. 586 (2007), the

Supreme    Court    set   out   the    standards    for    appellate    review   of

sentences as follows:

      Regardless of whether the sentence imposed is inside or
      outside the Guidelines range, the appellate court must
      review the sentence under an abuse-of-discretion
      standard. It must first 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 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.
      Assuming that the district court’s sentencing decision is
      procedurally sound, the appellate court should then
      consider the substantive reasonableness of the sentence
      imposed under an abuse-of-discretion standard.

Id. at 597.

            Although the drug amount and Griffiths’ criminal history

were accounted for in the guideline calculation, the sentencing

court had the discretion to decide that the seriousness of the

offense    and    the   defendant’s     history     and   characteristics       were

§ 3553(a) factors that warranted a sentence outside the range.

Griffiths has not identified any procedural error made by the

court.

            Further, the sentence is not substantively unreasonable.

As   explained     in   Gall,   when    reviewing    a    sentence    outside    the

guideline range for substantive reasonableness, the appellate court

should    “take    into   account      the   totality     of   the   circumstances

. . . .”    Gall, 128 S. Ct. at 597.            The court –


                                        - 5 -
      may consider the extent of the deviation, 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.   The fact that the appellate court might
      reasonably have concluded that a different sentence was
      appropriate is insufficient to justify reversal of the
      district court.

Id.

           Griffiths argues that the variance was excessive because

he was merely transporting the marijuana for others, and because

the court found that he was not a career offender.     However, in

light of Gall’s conclusion that the sentencing court “is in a

superior position to find facts and judge their import under

§ 3553(a) in the individual case,” id., and that its sentencing

decision should be accorded great deference, we conclude that the

sentence is not substantively unreasonable.

           We therefore affirm the sentence imposed by the district

court.   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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