                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4658


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MIGUEL EDUARDO SILVA,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00021-MOC-DCK-1)


Submitted:   July 29, 2014                 Decided:   August 6, 2014


Before KING, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina; Douglas E. Roberts, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Miguel       Eduardo    Silva    appeals        the      127-month     sentence

imposed   following       his     conviction      by    a     jury    of    one    count    of

possession with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) (Count One), one count

of attempt to distribute marijuana, in violation of                               21 U.S.C.

§ 841(a)(1),       (b)(1)(D)      (2012)     (Count      Two),       and    one    count    of

discharge     of    a    firearm    during        and    in    relation       to    a     drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (2012)

(Count Three).          On appeal, Silva challenges the reasonableness

of his sentence.         We affirm.

            We     review     a   sentence      for     reasonableness,           using    “an

abuse-of-discretion standard.”               Gall v. United States, 552 U.S.

38, 51 (2007).          We must first review for “significant procedural

error[s],” including, among other things, improperly calculating

the   Guidelines        range.      Id.         Only     if    we     find    a    sentence

procedurally       reasonable        may     we       consider        its     substantive

reasonableness.         Id.

            Silva first argues that his sentence is procedurally

unreasonable because the district court failed to provide notice

of its decision to upwardly depart, as required by Fed. R. Crim.

P. 32(h).        Because Silva raised no relevant objection in the

district court, our review of the issue is for plain error.                                See

Fed. R. Crim. P. 52(b); Henderson v. United States, 133 S. Ct.

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1121,     1126–27      (2013)     (discussing     standard).          Even     if    the

district     court      failed    to     comply   with     Rule    32(h)’s       notice

requirement,     however,        Silva   fails    to   show   that      this   failure

affected his substantial rights.                See United States v. McClung,

483 F.3d 273, 276 (4th Cir. 2007) (holding that failure to give

Rule 32(h) notice is plain error, but defendant failed to show

error’s effect on substantial rights).

            A sentencing error affects a defendant’s substantial

rights where, “absent the error, a different sentence might have

been imposed.”         United States v. Hernandez, 603 F.3d 267, 273

(4th Cir. 2010).          In this case, the district court explicitly

stated    that   it     would     impose    the   identical       sentence     in    the

absence    of    the    upward     departure,     and     Silva    has    failed      to

identify     anything      “new    or    additional”      that     he    would      have

presented to the district court had he been afforded adequate

notice under Rule 32(h).            McClung, 483 F.3d at 277.             Therefore,

Silva is entitled to no relief on this claim.

            Silva next contends that the district court failed to

properly     apply      the     upward     departure     authorized      under      U.S.

Sentencing Guidelines Manual (“USSG”) § 5K2.1, p.s. (2012), by

failing to adequately consider the factors set forth therein.

But the record reflects that the district court did explicitly

consider the § 5K2.1 factors, specifically discussing Silva’s



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preparation,         state          of     mind,         and    other          relevant      factors.

Therefore, this claim is unavailing.

              Finally,          Silva           argues          that        his      sentence       is

substantively unreasonable.                      Regardless of whether a district

court   varies       or       departs      to    a       sentence        above     the     Guidelines

range, we review the substantive reasonableness of an above-

Guidelines         sentence         with    regard         to       “whether       the     [d]istrict

[j]udge abused his discretion in determining that the § 3553(a)

factors      supported         [the]       sentence        .    .    .     and    justified       [the]

deviation from the Guidelines range.”                            Gall, 552 U.S. at 56.              In

doing     so,       we    “take          into      account           the       totality      of    the

circumstances, including the extent” of the deviation.                                        Id. at

51.

              Here, in support of the sentence, the district court

focused on the nature and circumstances of Silva’s offense, the

need    to    provide          adequate         deterrence,              and     Silva’s     personal

history      and    characteristics.                 Moreover,           the     court     considered

Silva’s      claim       of    self-defense,              but       determined       that    Silva’s

decision      to    bring       a    firearm         to    a    drug       deal     evidenced       his

willingness to use it, resulting in Silva shooting and killing a

prospective drug buyer who tried to rob him.                                      Therefore, Silva

fails to show that his sentence is substantively unreasonable.

See United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.

2012) (“That a variance sentence deviates significantly from the

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advisory   Guidelines         range    .    .   .     does   not     alone   render   it

presumptively     unreasonable.”);              see     also     United      States   v.

Diosdado-Star,        630    F.3d    359,   367     (4th     Cir.    2011)   (affirming

sentence seventy-two months above Guidelines range where court

properly explained its decision pursuant to § 3553(a) factors).

           Accordingly, we affirm the district court’s judgment.

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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