                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-1588
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JAMAR FISHER,
                                      a/k/a Netty

                                    JAMAR FISHER,
                                             Appellant



                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (District Court No.: 1-12-cr-00777-001)
                  District Court Judge: Honorable Renee Marie Bumb


                       Submitted under Third Circuit LAR 34.1(a)
                                   January 20, 2015


               Before: RENDELL, SMITH and KRAUSE, Circuit Judges


                            (Opinion filed: January 29, 2015)



                                      O P I N I O N*


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge:

       Appellant Jamar Fisher appeals his 96-month sentence, which was imposed when

he pled guilty to possession with intent to distribute drugs. We will affirm.

                                      I. Background

       Fisher was arrested for and pled guilty to possession with intent to distribute

drugs. In ultimately sentencing him, the District Court determined he was not a career-

offender but determined that an “upward variance” was warranted based on the

appropriate 18 U.S.C. § 3553(a) factors. Although the Guidelines range was 30 to 37

months, Fisher was sentenced to a term of 96 months due to his criminal history and

likelihood of recidivism. Fisher now appeals his sentencing, arguing it was procedurally

and substantively defective.

                       II.     Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. Regardless of whether the sentence imposed is

within the federal Sentencing Guidelines range, “the appellate court must review the

sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51

(2007). First, we must “ensure that the district court committed no significant procedural

error.” Id. Next, we consider “the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Id. If the sentence is outside the Guidelines

range, we will give some deference to the district court’s decision that the § 3553(a)

factors justify the variance. Id.


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                                     III.   Discussion

       Fisher first argues that his sentence was procedurally defective because the

District Court wrongly termed its action an upward “variance,” when it was actually a

departure under U.S.S.G. § 4A1.3 because his criminal history category under-reported

the seriousness of his criminal history. Thus, he urges that the District Court’s alleged

“upward departure” was imposed without the appropriate written opinion. In the

alternative, he asks that his sentence be vacated based on the District Court’s lack of

clarity.

       In sentencing a defendant, a District Court must exercise its discretion by

considering the relevant § 3553(a) factors regardless of whether the sentence varies from

the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). Departures

require a motion, United States v. Brown, 578 F.3d 221, 225-26 (3d Cir. 2009), since the

court must give parties reasonable notice of a sentencing departure, Irizarry v. United

States, 553 U.S. 708, 709-10 (2008). Variances, on the other hand, are “discretionary

changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a)

factors and do not require advance notice.” Brown, 578 F.3d at 226.

       Whether a district court has imposed a departure or a variance has consequences

for our review. Id. When reviewing a variance, we evaluate the district court’s analysis

of the § 3553(a) factors; when reviewing a departure, we must consult the relevant

Guidelines provision in order to determine whether the departure was appropriate. Id.

Since departures require motions, and no formal motions requesting an upward departure

were filed here, the only procedurally valid method the District Court could have used in

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increasing Fisher’s sentence was through an upward variance. Thus, the threshold

question is whether the District Court imposed an upward variance or improperly

imposed an upward departure.

       While Fisher points out that the District Court did initially state in a memorandum

opinion that an “upward departure” was warranted, the District Court clearly misspoke

and, at a hearing soon thereafter, specifically stated, “I think I am contemplating an

upward variance . . . . I am aware that my memorandum had said departure.” (App. 53.)

Furthermore, at the March 10, 2014 sentencing hearing, the District Court stated, “there

was a motion for a downward departure which has been withdrawn in light of the court’s

finding . . . and we are now at the stage of the consideration by this court of the § 3553(a)

factors.” (Id. at 115-16.) The “stage” at which a court evaluates § 3553(a) factors is

when it considers an upward variance. Brown, 578 F.3d at 225-26. Finally, before

analyzing the § 3553(a) factors, the District Court stated that “it appeared to the court that

an upward variance was warranted.” (App. 137.) Thus, the District Court clearly

intended to apply a variance despite its mistake in its initial opinion, and Fisher was well

aware of the correction and the District Court’s intended action. 1

       As we conclude that there was no procedural error, we next consider whether the

sentencing was substantively defective. Substantive defects are reviewed for abuse of

discretion, granting high deference to the District Court’s findings. Gall, 552 U.S. at 51.


1
  In finding that the District Court appropriately applied an upward variance, we need not
consider Fisher’s other two claims regarding the procedural inadequacies of the alleged
“upward departure” and his alternative argument, which asks us to vacate his sentence if
we cannot discern whether a variance or departure was granted.
                                              4
Fisher first contends that the District Court did not consider all of the relevant sentencing

factors, instead placing too much weight on his likelihood of recidivism and criminal

history. The § 3553(a) factors explicitly look at “the history . . . of the defendant” as well

as the likelihood of “further crimes of the defendant.” 18 U.S.C. § 3553(a)(1), (a)(2)(C).

Specifically, recidivism is the most traditional basis for an increase in a defendant’s

sentencing. Almendarez-Torres v. United States, 523 U.S. 224, 245 (1998). The District

Court did rely on Fisher’s high rate of recidivism and his past crimes in determining his

sentence but not to the exclusion of other factors, including “respect for the law,”

“deterrence,” “education or vocational training,” and “protecting the public from further

crimes.” (App. 141-43.) Furthermore, when asked whether any factors were not

addressed in his sentencing, Fisher replied in the negative. (Id. at 143.) Thus, the

District Court appropriately considered all of the relevant sentencing factors.

       Fisher next claims that the District Court failed to adequately explain the chosen

sentence. A sentencing court has an obligation to explain why the variance is appropriate

in light of the factors set forth in § 3553(a) and the meritorious objections of the parties.

See United States v. Negroni, 638 F.3d 434, 446 (3d Cir. 2011); United States v.

Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). Here, almost seven pages of the record is

devoted to the District Court’s reasoning as to why Fisher’s criminal history and the

ineffectiveness of his previous probation and imprisonment warrant a longer sentence.

(App. 137-43.) Thus, the District Court appropriately explained Fisher’s chosen

sentence.



                                              5
       Fisher finally claims that the District Court erroneously relied on his criminal

history in imposing an upward variance since the Guidelines already account for his

criminal history. While a criminal history category attempts to classify the history of the

defendant as compared to others for baseline purposes, it does not do away with the

court’s obligation to take the nature and extent of that history into account in determining

the appropriate sentence. Indeed, § 3553(a) requires the court to consider criminal

history and recidivism. In imposing a sentence above the advisory guidelines range, an

upward variance is based on the consideration of these same § 3553(a) factors. United

States v. Ausburn, 502 F.3d 313, 325 (3d Cir. 2007). Thus, the § 3553(a) factors, which

include the defendant’s criminal history, are considered when imposing the Guidelines

range, as stated above, and when imposing an upward variance. As such, the District

Court appropriately considered the defendant’s criminal history when imposing the

upward variance.

                                    IV.    Conclusion

       Because the District Court appropriately applied an upward variance, we will

affirm the sentencing of the District Court.




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