                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5315


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHADARRYL TURNER, a/k/a D, a/k/a Ditto, a/k/a Van Ditto,
a/k/a Shad,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00316-F-1)


Submitted:   October 26, 2011             Decided:   November 8, 2011


Before WILKINSON, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Clarke Speaks, THE SPEAKS LAW FIRM PC, Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:

             Shadarryl Turner pled guilty to conspiracy to commit

credit    card   fraud,     in    violation        of    18    U.S.C.    § 1092(b)(2)

(2006),    and   credit     card      fraud,      in    violation      of    18    U.S.C.

§ 1092(a)(2),(5).         The district court imposed a seventy-eight

month variance sentence, fifteen months greater than the high

end of the advisory Guidelines range.                   On appeal, Turner argues

that the district court committed procedural error by denying

counsel an opportunity to address the court before sentencing

and   substantive    error       by   imposing     a    variance       sentence.         We

affirm.

             Appellate courts review a sentence for procedural and

substantive      reasonableness          under      a     deferential         abuse     of

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

(2007).      This court’s review is for plain error because Turner

neither argued for a lesser sentence nor objected to the court’s

failure to invite counsel to allocute.                    United States v. Lynn,

592   F.3d    572,   577-78,       580     (4th    Cir.       2010).        Turner     must

therefore     demonstrate     error        that    is    plain    and    affects       his

substantial rights.        United States v. Olano, 507 U.S. 725, 732

(1993).

             “Before imposing sentence, the court must: (i) provide

the   defendant’s     attorney        an     opportunity         to    speak      on   the

defendant’s behalf.”        Fed. R. Crim. P. 32(i)(4)(A)(i).                      Although

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the   district       court    did    not     elicit      remarks     from      counsel,       it

appears    that      Turner’s     counsel      had       ample    opportunity       to    have

alerted the court if he had any mitigating arguments to present.

Additionally, even if we assume that the court erred in failing

to elicit comment from counsel, Turner fails to show that the

error affects his substantial rights, as he does not explain

what arguments counsel could have offered in mitigation, or why

they would have justified a lesser sentence.                          We thus conclude

that Turner has not demonstrated plain error.

               The   substantive      reasonableness             inquiry    requires      the

court     to    review       “whether      the      District       Judge       abused     his

discretion in determining that the [18 U.S.C.] § 3553(a) [2006]

factors    supported       [the     sentence]       and     justified      a   substantial

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

The     court    must     take      “‘into        account    the     totality       of    the

circumstances, including the extent of any variance from the

Guidelines range.’”             United States v. Morace, 594 F.3d 340, 346

(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.

Ct. 307 (2010).           The court must also “give due deference to the

district       court’s    decision      that       the    § 3553(a)     factors      .    .    .

justify the extent of the variance.”                        Id. (internal quotation

marks omitted).

               Turner’s      Criminal      History        Category    was      VI   without

consideration        of   his    numerous      uncounted         convictions,       and    his

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presentence report showed a continuous pattern of credit card

fraud and identity theft.        We conclude that the district court

did not abuse its discretion in concluding that the nature of

the offense, Turner’s extensive criminal history, his continued

criminal   conduct   even   after    his    previous    sentences,      and    his

propensity   to   commit    credit   card    fraud     warranted   an     above-

Guidelines sentence.

           Accordingly,     we   affirm.        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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