                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4533


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONNIE ALVIN HOWARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:15-cr-00053-1)


Submitted:   January 29, 2016             Decided:   February 10, 2016


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Christian M. Capece, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, Research &
Writing Specialist, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Jennifer Rada
Herrald, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Ronnie Alvin Howard pled guilty to failing to register as a

sex offender, in violation of 18 U.S.C. § 2250 (2012).                           The

district court sentenced him to 21 months’ imprisonment to be

followed by 10 years’ supervised release.                    Howard appeals this

sentence, contending that the district court erred by upwardly

departing from the applicable Sentencing Guidelines range for

his term of supervised release without providing him with the

requisite     notice. 1     We    agree,       and   therefore    vacate    in   part

Howard’s sentence.

      We    review    a    sentence       for    procedural       and    substantive

reasonableness,       applying      “a        deferential    abuse-of-discretion

standard.”      Gall v. United States, 552 U.S. 38, 41 (2007).                    In

determining procedural reasonableness, we consider whether the

district      court   properly     calculated         the   applicable      advisory

Guidelines range, gave the parties an opportunity to argue for

an   appropriate      sentence,    considered        the    18   U.S.C.    § 3553(a)

(2012)     factors,       and    sufficiently         explained     the     selected

sentence.     Id. at 49-51.

      “[I]f    a   party    repeats      on    appeal   a   claim   of    procedural

sentencing error . . . which it has made before the district



      1Howard does not challenge his within-Guidelines sentence
of 21 months’ imprisonment.



                                           2
court, we review for abuse of discretion.                            If we find such

abuse,    we    reverse       unless     we       conclude    that     the    error    was

harmless.”       United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010).    Offering “§ 3553 arguments in the district court for a

different sentence than the one he received” is sufficient to

“preserve[]      [the      defendant’s]       claim    of     procedural      sentencing

error on appeal.”          Id. at 581.

     Howard contends the district court’s sentence of 10 years’

supervised      release      was   procedurally        unreasonable          because   the

court    failed      to    provide      the    requisite      notice     that    it    was

considering a departure from the applicable Guidelines range.

Because    Howard         argued   for    a       five-year    term     of    supervised

release, we review for an abuse of discretion.                        We conclude that

Howard    has    demonstrated        that     the    district     court      abused    its

discretion      by    failing      to    provide       notice     of    its     intended

departure, as required by Fed. R. Crim. P. 32(h).

     Unless the Government can “demonstrat[e] that the error was

harmless, i.e. that it did not have a substantial and injurious

effect    or    influence     on   the    result,”      we    must    vacate    Howard’s

sentence and remand to the district court.                       Lynn, 592 F.3d at

585 (internal quotation marks omitted).                       We conclude that the

Government has failed to demonstrate harmlessness.                             We reject

the Government’s contention that the 10-year term of supervised

release was a variance and thus did not require notice.                                See

                                              3
Irizarry   v.     United    States,      553     U.S.      708,     713-14        (2008)

(distinguishing notice requirements for variance and departure).

At   Howard’s    sentencing     hearing,       the     increased      sentence       was

characterized only as a departure and not as a variance; such

unambiguous     oral    pronouncement        controls.           United     States    v.

Osborne, 345 F.3d 281, 283 n.1 (4th Cir. 2003).

      Accordingly,      although    we       affirm    the       21-month    term     of

imprisonment,    we    vacate    Howard’s      supervised        release     term    and

remand for resentencing as to the term of supervised release. 2

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 IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




      2By this disposition we express no opinion as to                               the
appropriateness of a departure or variance on remand if                              the
required procedures are observed.



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