                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4435


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROGER JUNIOR ARTHUR, JR., a/k/a Roger Arthur, Jr., a/k/a
Busy, a/k/a Biz,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00055-BO-1)


Submitted:   September 10, 2013          Decided:   September 27, 2013


Before GREGORY, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dennis   H.  Sullivan,  Jr., SULLIVAN  &  WAGONER LAW  FIRM,
Wilmington, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Joshua L.
Rogers, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Roger Junior Arthur, Jr., pleaded guilty, pursuant to

a written plea agreement, to a two-count indictment charging him

with    knowingly       and   intentionally               conspiring      with    others    to

possess    with    intent      to    distribute           a   quantity     of     heroin,   in

violation of 21 U.S.C. § 846, and knowingly and intentionally

possessing with intent to distribute a quantity of heroin, and

aiding    and     abetting      another,             in    violation       of     21   U.S.C.

§ 841(a)(1)       and    18   U.S.C.        § 2.           Prior    to    sentencing,       the

government filed a motion for an upward departure under § 4A1.3.

Arthur received a sentence of forty-one months, which was above

the Sentencing Guidelines range.                     On appeal, Arthur argues that

the    district    court      departed          upward     and     that   it     procedurally

erred in doing so.              He also contends his total sentence is

unreasonable.      Finding no error, we affirm.

            Arthur       argues          that     the      district       court    committed

procedural      error    when       it    departed         upward    of    the     Guidelines

range, pursuant to U.S. Sentencing Guidelines Manual § 4A1.3(a).

Arthur    also     argues       that        the      forty-one-month            sentence     is

unreasonable because it creates a sentencing disparity; it is

greater than necessary to achieve the factors set forth in 18

U.S.C. § 3553(a); and the court failed to consider mitigating

circumstances.          The government contends that the court did not

in fact impose an upward departure, but instead varied upward

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outside the Guidelines range.                    The government also argues that

the district court imposed a reasonable sentence.

               The      “permissible         factors             justifying          traditional

departures differ from--and are more limited than--the factors a

[district]          court   may    look     to       in    order       to    justify    a    . . .

variance.”          United States v. Hampton, 441 F.3d 284, 288 n.2 (4th

Cir.       2006).      As   departures       are          thus    “subject       to    different

requirements than variances,” United States v. Floyd, 499 F.3d

308, 311 (3d Cir. 2007), it is important for district courts to

“articulate whether a sentence is a departure or a variance from

an advisory Guidelines range.” United States v. Brown, 578 F.3d

221, 226 (3d Cir. 2009) (internal quotations omitted).                                  However,

“the method of deviation from the Guidelines range--whether by a

departure or by varying--is irrelevant so long as at least one

rationale       is     justified      and    reasonable.”                   United    States      v.

Diosdado-Star, 630 F.3d 359, 365-66 (4th Cir. 2011).

               At     the   sentencing       hearing,            the    court     stated         that

“based on these facts and [§] 3553(a), I’ll vary the sentence

upwardly.” J.A. 40 (emphasis added).                         The court determined that

offense level 18 with criminal history category III would result

in     a    satisfactory          sentence       and       the     range       “would       be     an

appropriate variance.”              Id. (emphasis added).

               This is further underscored by the written statement

of reasons entered by the court.                      The court did not mark the box

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to indicate that the court departed from the advisory Guidelines

range; it marked the box that it imposed a sentence outside the

advisory range.       See J.A. 71.        The only slight indication to the

contrary is that the court also marked the box for the sentence

being imposed pursuant to a “government motion for a sentence

outside of the advisory guideline system” not addressed in a

plea agreement.         J.A. 72.     The government’s motion was for an

upward   departure       under     USSG        § 4A1.3;    however,      during   the

sentencing hearing, the court did not specifically grant the

motion or state that it was departing upward.                      In the section

for reasons that the sentence is outside the advisory Guidelines

range,   the    court    marked    as     reasons    due    to    “the   nature    and

circumstances of the offense and the history and characteristics

of the defendant pursuant to 18 U.S.C. § 3553(a)(1)” and “to

reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense (18

U.S.C.   § 3553(a)(2)(A)).”               J.A.     72.       The      factors     were

appropriate     to   consider      for    a     variance,   but    not     an   upward

departure under USSG § 4A1.3.                  Accordingly, Arthur’s arguments

challenging the procedural reasonableness of his sentence as the

result   of    an    erroneous     upward       departure    are    moot    and   are

rejected.

              As to the overall reasonableness of the sentence as an

upward   variance,       we   review      a     sentence    for    reasonableness,

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applying    an    abuse      of     discretion       standard.        Gall    v.   United

States, 552 U.S. 38, 46 (2007).                      The court first reviews for

significant procedural error, and if the sentence is free from

such error, we then consider substantive reasonableness.                           Id. at

51.       Procedural        error       includes     improperly       calculating      the

Guidelines range, treating the Guidelines range as mandatory,

failing    to     consider        the    § 3553(a)     factors,       and    failing   to

adequately      explain      the    selected        sentence.        Id.     Substantive

reasonableness is determined by considering the totality of the

circumstances, including the extent of any deviation from the

Guidelines range.            Id.        An upward variance is permitted where

justified by the § 3553(a) factors.                        See id.    This court must

give due deference to the district court’s determination that

the § 3553(a) factors justify the extent of a variance, and the

fact that this court might find a different sentence appropriate

is insufficient to justify reversal of the district court.                          Id.

            We conclude that Arthur’s above-Guidelines sentence is

reasonable.           The   district      court     properly      calculated    Arthur’s

Guidelines range, treated the range as advisory, and adequately

explained       the     selected        sentence.           The   court     specifically

explained that Arthur’s above-Guidelines sentence was warranted

by the facts presented by the government as well as multiple

§ 3553(a)       factors.          J.A.    40.        The    court    was    particularly

concerned with Arthur’s high likelihood of recidivism and the

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significant      nature       of    the       heroin           trade    in    Wilmington         and

Arthur’s     role      in    it.          Accordingly,             Arthur’s         sentence      is

procedurally reasonable.

             Arthur’s       sentence          is       also     substantively        reasonable,

considering     the    totality          of    the       circumstances,         including        the

extent     of    the        variance.                  Though     Arthur’s          sentence      is

approximately       one-third           higher          than     the     high       end     of   his

Guidelines      range,       the        district          court        did    not        abuse   its

discretion in determining that such a deviation was justified by

the § 3553(a) factors, including Arthur’s criminal history, the

need to protect the public, and the need to provide adequate

deterrence.      We therefore conclude that Arthur’s forty-one-month

sentence is reasonable.

            Accordingly,           we    affirm          the    judgment.           We    deny   the

government’s motion to dismiss the appeal.                                   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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