                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4261


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DELRAY RANDALL, a/k/a Black,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:15-cr-00649-JKB-1)


Submitted: November 21, 2017                                 Decided: December 4, 2017


Before TRAXLER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William B. Purpura, Jr., OFFICE OF WILLIAM PURPURA, Baltimore, Maryland, for
Appellant. Stephen M. Schenning, Acting United States Attorney, Michael C. Hanlon,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Delray Randall appeals the 96-month sentence imposed following his convictions

for conspiracy to engage in the business of dealing in firearms without a license, in

violation of 18 U.S.C. § 371 (2012), and engaging in the business of dealing in firearms

without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (2012). On appeal, Randall

argues that the district court committed procedural error in imposing an above-Guidelines

sentence without providing the parties prior notice. We affirm.

       We    review    the   reasonableness       of   a   sentence   “under   a   deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This entails

review of the procedural and substantive reasonableness of the sentence. Id. at 51.

“Procedural errors include ‘. . . improperly calculating[] the Guidelines range, . . . failing

to consider the [18 U.S.C.] § 3553(a) [(2012)] 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.’” United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).

       District courts may impose sentences that exceed the applicable Sentencing

Guidelines range in two circumstances. A sentence imposed within the structure of the

Sentencing Guidelines—a departure—requires that the district court provide prior notice

to the parties. USSG § 6A1.4, p.s.; Fed. R. Crim. P. 32(h). In contrast, when a district

court imposes a variant sentence, it need not provide advance notice to the parties.

Irizarry v. United States, 553 U.S. 708, 715 (2008).           Variances arise not from the



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Guidelines themselves, but from the district court’s application of the relevant § 3553(a)

factors and its inherent discretion in imposing a sentence. Id.

       Randall does not dispute that advance notice is not required if a district court

imposes a variance, nor does he dispute that the district court characterized the sentence

as a variance. Rather, Randall asserts that the analysis undertaken by the district court,

combined with the facts on which the court relied, belie its assertion that it imposed a

variance and instead reveal the sentence to be a departure.

       We conclude that the circumstances surrounding the district court’s imposition of

an above-Guidelines sentence make clear that the sentence was a variance, not a

departure. The district court, when discussing the relevant § 3553(a) factors, explicitly

identified Randall’s criminal history as critical to a proper evaluation of his history and

characteristics. The court noted Randall’s extensive criminal background, his habit of

violating supervised release, and his previous firearm conviction, and stated that the sum

of those prior offenses “hits us right at the very first factor to be reckoned with and that

is, what is the history of this defendant?” (Joint App’x. 111). The fact that the district

court discussed Randall’s criminal history in relation to the § 3553(a) factors is strong

evidence that the court in fact imposed a variance, not a departure.

       Although Randall argues that the district court applied much the same procedural

analysis as is applied to a departure, the district court explained that it undertook that

analysis to provide context and to assist appellate review of the sentence. Consequently,

this analysis does not undermine the court’s characterization of the sentence. See United

States v. Aponte-Vellon, 754 F.3d 89, 93 (1st Cir. 2014).

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      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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