                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5001


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHN LEWIS COTTRELL, II,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge. (2:09-cr-00005-jpj-pms-3)


Submitted:   July 15, 2010                 Decided:   July 26, 2010


Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Brian J. Beck, Assistant Federal Public
Defender, Abingdon, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Jennifer R. Bockhorst, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              John Lewis Cottrell, II, was charged with one count of

conspiracy      to       possess      with      intent        to   distribute         and    to

distribute oxycodone, in violation of 21 U.S.C. § 846 (2006),

and   two   counts       of    possession       with      intent    to     distribute       and

distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1)

(2006).       Cottrell        pled    guilty       to   all    three     charges      and    was

sentenced to 180 months of imprisonment.                           He now appeals; for

the following reasons, we affirm.

              After Cottrell’s arrest on the charges to which he

eventually pled guilty, Cottrell was released on an unsecured

bond, with the condition that he not violate federal, state, or

local   law.         A   few       months    after      his    release,       Cottrell       was

arrested and charged with grand larceny in Virginia state court.

As a result, the district court ordered the bond be forfeited in

part,   and    Cottrell        returned       to    the    custody       of   the    Attorney

General for confinement.

              The    presentence           report       (“PSR”)    prepared         following

Cottrell’s      guilty        pleas    concluded          that,    based      on    the     drug

quantity      involved        in     his     offense      conduct,       Cottrell’s         base

offense     level    was      twenty-eight,          pursuant      to    U.S.       Sentencing

Guidelines      Manual        (“USSG”)        § 2D1.1(c)(6)        (2008).           The     PSR

determined      that      because          Cottrell     had    committed        a     criminal

offense while on bond, he was not entitled to an acceptance of

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responsibility reduction, even though he had admitted to the

charged conduct and cooperated with the probation officer during

the   preparation      of    the    PSR.          Thus,   Cottrell’s   total    offense

level was twenty-eight.

      However, the PSR also determined that Cottrell could be

sentenced    as   a    career        offender,        pursuant    to   USSG    § 4B1.1,

because of his prior felony convictions, for a total offense

level   of    thirty-four.             In    calculating       Cottrell’s      criminal

history, the PSR noted his several juvenile convictions, none of

which earned him criminal history points.                        Based on his adult

convictions, the PSR determined that Cottrell’s criminal history

criminal     history        category        was     VI.     Accordingly,       the   PSR

concluded that if the court agreed that Cottrell was a career

offender, his Guidelines range for imprisonment would be 262 to

327 months, pursuant to USSG ch. 5, pt. A (sentencing table).

The PSR also noted that, in the event the court determined that

Cottrell was not a career offender, there were potential grounds

for an upward departure based on Cottrell’s prior convictions.

             At sentencing, the court determined that Cottrell was

not   entitled    to    the        acceptance        of   responsibility      reduction

because, although he had pled guilty and admitted his conduct,

he had committed a criminal violation while on bond.                           However,

the court sustained Cottrell’s objection regarding the career

offender designation, finding that his prior adult conviction

                                              3
for possession of marijuana while in custody did not constitute

a   controlled      substance         offense       within     the    meaning         of    USSG

§ 4B1.2.       As a result, the court found Cottrell’s total offense

level to be twenty-eight, with a resulting Guidelines range of

140 to 175 months.              Nonetheless, the court sentenced Cottrell

above    the    Guidelines        range       to    180    months     of    imprisonment,

specifically      noting        Cottrell’s         lengthy   criminal          history,      the

seriousness of his offense, the need for deterrence, and the

need to protect the public.                  The court reiterated these factors

in its written statement of reasons.

            On appeal, Cottrell challenges the reasonableness of

his sentence on three grounds, arguing: (1) that the district

court’s     failure       “to     issue       a     sufficient       written         statement

explaining the upward departure/variance constitutes procedural

error”; (2) “the district court’s upward departure/variance was

procedurally and substantively unreasonable given that one of

the     explained      bases      for    the       departure—defendant’s              juvenile

criminal       history—was        a     factor      that     the     empirically           based

criminal history guidelines disregarded and where there was no

reason    given     for    rejecting”         Guidelines       policy;         and    (3)   the

district       court      erred       when     it     denied       the     acceptance         of

responsibility          reduction,           “in     light      of       Mr.     Cottrell’s

uncontradicted         [sic]      expression        of    remorse,       his    coordinated

state and federal guilty pleas, and because the district court

                                               4
relied    upon    improper       factors     (criminal     history      and   juvenile

history) as a basis for denial.”

            When the procedural and substantive reasonableness of

a   sentence     is    challenged      on    appeal,     this   court    reviews   the

sentence using an abuse of discretion standard.                         See Gall v.

United    States,       552    U.S.    38,   51    (2007).      Procedural      errors

include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) 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.”           Id.

            We first address Cottrell’s argument that the district

court committed procedural error when it failed to give him an

acceptance of responsibility reduction.                   Under USSG § 3E1.1, if

a “defendant clearly demonstrates acceptance of responsibility

for his offense,” his offense level is decreased by two levels.

The commentary to § 3E1.1 lists a number of factors that may be

considered in making this determination, including admitting the

offense   conduct       and    voluntarily        terminating   criminal      conduct.

USSG   § 3E1.1        cmt.    n.1.     While      the   commentary   explains      that

“[e]ntry of a plea of guilty prior to the commencement of trial

combined with truthfully admitting the conduct comprising the

offense of conviction, and truthfully admitting or not falsely

                                             5
denying    any        additional         relevant        conduct        for    which        he    is

accountable      .     .    .    will     constitute          significant           evidence      of

acceptance       of     responsibility,”            it     also       states        that     “this

evidence may be outweighed by conduct of the defendant that is

inconsistent      with       such   acceptance           of     responsibility.”                 USSG

§ 3E1.1 cmt. n.3.            Moreover, “[a] defendant who enters a guilty

plea is not entitled to an adjustment . . . as a matter of

right.”    Id.        The commentary also explains that because “[t]he

sentencing       judge      is    in      a    unique      position           to    evaluate       a

defendant’s          acceptance          of      responsibility,”                  the      judge’s

determination on this reduction “is entitled to great deference

on review.”       USSG § 3E1.1 cmt. n.5.                   Accordingly, we “review a

district               court’s                decision                concerning                   an

acceptance-of-responsibility                  adjustment             for      clear         error.”

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).

               Here, Cottrell argues that because he committed the

additional state violation prior to entry of his guilty plea and

not   after,     the       district      court      should       have      granted         him   the

reduction.        Moreover,         he    asserts        that     the      court         improperly

considered      his    criminal         disposition        as    a    reason        for     denying

acceptance.          However, we have previously held that continued

criminal conduct following indictment is a sufficient reason for

denying    a    reduction        for     acceptance        of     responsibility.                See

Dugger, 485 F.3d at 240 (finding the district court did not err

                                                6
in denying the reduction where defendant engaged in criminal

activity     following         indictment,        even     though       defendant       later

admitted     to     all      criminal       conduct);      United       States v.       Kidd,

12 F.3d 30, 34 (4th Cir. 1993) (affirming the denial of the

acceptance of responsibility reduction where defendant committed

criminal     activity          while    on    pretrial       release,         even    though

defendant       later        entered    a    guilty       plea,     admitted         relevant

conduct, and cooperated with his probation officer).                             Moreover,

although the district court did note when denying the reduction

that Cottrell had a long criminal history, the court relied on

the fact that he “engaged in serious criminal conduct after the

charges.”         The     court     highlighted       Cottrell’s         prior       criminal

history     only        in     explaining         that     he     had     not        accepted

responsibility       and      was   “merely       going    through      the    motions     of

contrition.”        Dugger, 485 F.3d at 241 (internal quotation marks

ommitted).        Accordingly, we hold that the district court did not

clearly err in denying Cottrell a reduction for acceptance of

responsibility.

             Next, Cottrell challenges the district court’s written

explanation of his sentence, arguing that the court failed to

provide     a     sufficient        written       explanation        as       required     by

18 U.S.C.A. § 3553(c)(2) (West, Westlaw through P.L. 111-190).

Cottrell asserts that the court not only failed to fulfill the

written requirement, but also failed “to sufficiently explain

                                              7
how    the      controlling           criminal          history        scoring     did       not

sufficiently           account          for            defendant’s           history         and

characteristic.”          He further asserts in this claim and in a

separate       claim    that     the    district             court’s   reference       to    his

“criminal conduct while age 15 . . . was a factor which the

guidelines      dictated        not    be    counted          given    the   scoring        rules

applicable to juvenile convictions,” and if the court disagreed

with    this    it     needed    to    explain          its     policy    disagreement        in

detail.      In his reply brief, Cottrell also argues that despite

the language used by the district court, the increase in his

sentence was a departure, not a variance, and should be reviewed

as such on appeal.

               When a district court sentences a defendant outside of

the    established       Guidelines          range,          § 3553(c)(2)     requires       the

court to “state in open court the reasons for its imposition of

the    particular       sentence,”          and       “the    specific    reason   for       the

imposition of a sentence different from that described, which

reasons must also be stated with specificity in a statement of

reasons form.”         In evaluating the sentencing court’s explanation

of a selected sentence, this court has consistently held that,

while a district court must consider the statutory factors and

explain its sentence, it need not explicitly reference § 3553(a)

or    discuss    every     factor       on    the       record.        United    States       v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006).                              At the same time,

                                                  8
however,        the    district       court        “must      make       an     individualized

assessment based on the facts presented.”                           Gall, 552 U.S. at 50;

see also Rita v. United States, 551 U.S. 338, 356-57 (2007).

The   reasons         articulated      by     the      district      court       for    a   given

sentence    need        not      be   “couched         in    the    precise       language     of

§ 3553(a),” so long as the “reasons can be matched to a factor

appropriate          for   consideration           .    .    .     and    clearly      tied    to

[defendant’s] particular situation.”                         United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007).

            In United States v. Carter, 564 F.3d 325 (4th Cir.

2009),     we    further         explained     that         while    the      “individualized

assessment [of each defendant] need not be elaborate or lengthy,

. . . it must provide a rationale tailored to the particular

case at hand and [be] adequate to permit meaningful appellate

review.”        Id. at 330 (internal quotation marks omitted).                              Thus,

a conclusory statement that a specific sentence is the proper

one does not satisfy the district court’s responsibilities.                                   Id.

at 328-29.            In addition, we cannot presume that the district

court adopted the arguments of one of the parties while imposing

sentence;       an    appellate       court    may      not      guess     at    the   district

court’s rationale.            Id. at 329-30.

            Here,          the    district         court         provided       an     extensive

explanation prior to sentencing Cottrell.                           Having recognized the

Guidelines range was 140 to 175 months, the court explained that

                                               9
it had to impose a sentence that was not greater than necessary

to     satisfy      § 3553(a).           The      court        acknowledged       Cottrell’s

extensive      criminal      history,        which       began    at     age    fifteen    and

continued until, and even after, his arrest for the underlying

offense at the age of twenty-six.                         The court highlighted the

need    for    a   sentence      that    would         deter   Cottrell        from   criminal

activity, as his prior sentences and periods of probation had

had    no     deterrent      effect.             The    court     also      explained     that

Cottrell’s offenses had been serious, and that even after being

arrested on federal charges he committed a felony while on bond.

The court stated that Cottrell’s actions indicated that he had

“little intention of changing his behavior or becoming a law

abiding,      productive        member      of    society.”         Although      the     court

acknowledged the arguments made by Cottrell’s counsel, it found

that Cottrell’s past indicated that he would be a danger to

society when released, and “that the nature and circumstances of

the     offense,      as     well     as     in        particular      the      history    and

characteristics of [Cottrell],” warranted a sentence above the

Guidelines         range   in    order       “to       reflect     the      seriousness     of

[Cottrell’s]        crime”      and   “to    protect       the    public       from    further

crimes” by him.            Accordingly, the court imposed a sentence of

180 months.

              Despite      Cottrell’s            contentions,          we      conclude     the

district court’s sentence constituted a variance from Cottrell’s

                                                 10
Guidelines range rather than a departure. *                        We further conclude

that the court adequately explained the rationale for the chosen

sentence, both orally and in writing.

            Here,       the   district      court       expressly      relied     on    the

§ 3553(a) factors in sentencing Cottrell and in explaining the

above-Guidelines        sentence,      focusing        on    Cottrell’s     history     and

characteristics, and the need for the sentence to deter criminal

conduct and protect the public.                   In the written statement, the

court     again   noted       that     it   was    sentencing         Cottrell     to    an

above-Guidelines         sentence       based      on       the    § 3553(a)     factors,

specifically “the nature and circumstances of the offense and

the   history     and    characteristics          of    the       defendant,”    and    “to

protect the public from further crimes” by Cottrell.                            The court

also noted Cottrell’s high likelihood of recidivism based on his

prior criminal conduct.              To the extent that the court referenced

Cottrell’s    juvenile        convictions,        it    did   so    only   in   terms    of

explaining the sentence pursuant to the § 3553(a)(1) factor of

the history and characteristics of the defendant.                          The court did


      *
       The Supreme Court in Irizarry v. United States, 553 U.S.
708, ___, 128 S. Ct. 2198, 2202-03 (2008), explained that the
terms “variance” and “departure” are distinct. A departure “is
a term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the
Guidelines.” Id. at 2202. A variance, on the other hand, is a
non-Guidelines sentence “justified under the sentencing factors
set forth in 18 U.S.C. § 3553(a).” Id. at 2203.



                                            11
not   use   these   convictions     to    calculate     Cottrell’s      criminal

history because the increased sentence was, as noted, based on a

variance and not a departure.             Accordingly, we hold that the

court properly relied on the § 3553(a) factors to explain the

sentence and variance, both at the sentencing hearing and in the

written statement of reasons.             Thus, there was no procedural

error by the court in its explanation of Cottrell’s sentence.

            Accordingly,      we   affirm    Cottrell’s        conviction   and

sentence.      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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