                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4516


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SAMUEL LEE HORTON, II,

                Defendant – Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-01311-HMH-1)


Argued:   September 18, 2012                 Decided:   November 19, 2012


Before TRAXLER,   Chief   Judge,    and   DIAZ    and   THACKER,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: David Bruce Betts, Columbia, South Carolina, for
Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.   ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Samuel Lee Horton, II appeals his sentence for making a

false statement in a passport application in violation of 18

U.S.C.   § 1542.         Specifically,         Horton    challenges        the    district

court’s decision to vary from the guidelines and impose a 120-

month prison sentence, the statutory maximum for the offense.

We affirm.



                                           I.

                                           A.

       Horton and his wife divorced in February 2009.                       The divorce

decree granted his wife custody of their two minor children and

Horton      visitation    rights.         The    same    day   the    divorce       became

final,      Horton    falsified     his    wife’s       signature     on    a     passport

application     for    the   purpose      of    obtaining      a   passport       for    his

daughter.      In April 2009, Horton picked up his then three-year-

old daughter for what he told his ex-wife would be a nine-day

trip   to    Disney    World   in    Florida.           Instead,     he    took    her    to

Thailand, arriving on April 9, 2009.                    Law enforcement officials

located and apprehended Horton in June 2010, fourteen months

later, and returned him and his daughter to the United States.

                                           B.

       Horton pleaded guilty to a single-count indictment charging

him with making a false statement in a passport application in

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violation    of   18    U.S.C.    §   1542.      Horton’s       presentence     report

(“PSR”) determined that the sentencing guideline for passport

fraud,    U.S.S.G.      §    2L2.2,   required     a    cross-reference        to   the

guideline      applicable       to    International          Parental   Kidnapping,

U.S.S.G. § 2J1.2.           The cross-reference resulted in a higher base

offense level and the PSR calculated a total offense level of 16

that,    combined      with     Horton’s    category      II     criminal     history,

resulted in an advisory guideline range of twenty-four to thirty

months’ imprisonment.           The statutory maximum prison sentence for

violation of the international parental kidnapping statute, 18

U.S.C. § 1204, was thirty-six months.                     The statutory maximum

sentence for making a false statement in a passport application,

the   charge    to     which    Horton   pleaded       guilty,    was   120   months.

Neither party objected to the PSR.

        At Horton’s sentencing hearing, the government moved for a

variance or departure above the top of the advisory guideline

range.      The      district    court     granted     the     motion   because     the

“guidelines just do not fit . . . what has occurred here.”

(J.A. 47.)        In particular, the district court relied on the

following circumstances: (1) Horton fled with his daughter and

made no contact with his ex-wife for several weeks, causing the

child’s family to wonder whether she was even alive, (2) he

relocated the child to Thailand, on the other side of the world,

for fourteen months and had no intention of reuniting her with

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her family, (3) he taunted his ex-wife by email, (4) he locked

the child in her bedroom so that she would not escape, (5) he

and a male companion sexually victimized the child,                                 (6) the

child was reunited with her family only due to a prolonged,

diligent law enforcement campaign to locate her and apprehend

Horton,      and    (7)   expert      testimony       established        that     she   would

suffer       lifelong     trauma      and     need     prolonged     counseling.           In

addition, the district court considered Horton’s contempt for

the    law    (evidenced       by     his    frequent       criminal     violations        and

violations of orders issued by the family court), his likelihood

of further victimizing his daughter and her family, and the need

to    promote       deterrence       for    this     type    of   crime.        The     court

sentenced      Horton     to    the    statutory       maximum      of    120     months    in

prison,      four    times     the    high    end     of    his   applicable      guideline

range.       This appeal followed.



                                              II.

       Horton contends that the district court failed to provide a

sufficient         justification       for    its     substantial        upward    variance

from the guideline range.                  He argues that the reasons relied on

by the district court for imposing the 120-month prison sentence

primarily       involve      conduct        related    to     international        parental

kidnapping, a crime which carries a statutory maximum sentence

of    thirty-six      months.         Thus,    in     Horton’s     view,    the    district

                                               4
court erred in arriving at a sentence that “is more than three

times the statutory maximum he would have faced for parental

kidnapping.”           Appellant’s Br. at 7.

      We review the district court's sentence for reasonableness

under      a     “deferential     abuse-of-discretion           standard.”         United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation omitted).             “In assessing whether a sentencing court

has properly applied the Guidelines, we review factual findings

for clear error and legal conclusions de novo.”                         United States

v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

      An       out-of-guidelines       sentence    must    be    reviewed     for      both

procedural         and    substantive     reasonableness.           Gall     v.    United

States, 552 U.S. 38, 51 (2007).                 “A sentence may be procedurally

unreasonable, for example, if the district court provides an

inadequate statement of reasons or fails to make a necessary

factual finding.”            United States v. Moreland, 437 F.3d 424, 434

(4th Cir. 2006), overruled on other grounds by Gall, 552 U.S.

38.      On      the   other   hand,     “[a]   sentence   may     be   substantively

unreasonable if the court relies on an improper [sentencing]

factor      or     rejects     policies    articulated      by     Congress       or   the

Sentencing Commission.”            Id.

      Our review of Horton’s sentence should “take into account

the totality of the circumstances” in determining whether the

district court’s justification for imposing an out-of-guidelines

                                            5
sentence is “sufficiently compelling to support the degree of

the   variance.”              Gall,    552     U.S.      at   50-51.          “[C]ommon      sense

dictates that a major departure should be supported by a more

significant justification than a minor one.”                                 United States v.

Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (internal quotation

marks omitted).

       We    conclude         that     the     district       court     did    not    abuse    its

discretion     in     imposing         the     statutory       maximum        sentence.        The

extraordinary       facts          found      by   the     district      court,       summarized

above,      support       a    sentence        significantly            in    excess    of     the

advisory guideline range.                    Horton’s contention that his sentence

would have been capped at thirty-six months had the government

charged him with international parental kidnapping is beside the

point.      A defendant may be charged and sentenced under the more

punitive      of    two       or      more     statutes       that      the     defendant      has

violated.      See United States v. Batchelder, 442 U.S. 114, 125

(1979).      And in establishing a 120-month maximum sentence for

passport      fraud,           Congress        clearly         contemplated           that     the

circumstances of certain cases would be such that the offender

deserves to be punished up to the maximum term.                                 We agree with

the district court that this is such a case.                                 Congress’s policy

choice in setting the respective statutory maximum sentences for

the   offenses      at        issue    here,       which      it   is   not     our    place   to

question, also serves to dispose of Horton’s argument that a

                                                   6
sentence above the statutory maximum for international parental

kidnapping creates an unwarranted sentencing disparity under 18

U.S.C. § 3553(a)(6). *



                              III.

     We affirm the judgment of the district court.

                                                       AFFIRMED




     *
       Horton also argues that the district court’s sentence
should not have been influenced by the fact that Horton was not
going to face state criminal charges. In our view, however, any
error was harmless given the other good and substantial reasons
supporting the district court’s sentence.



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