                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4146


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FREDERICK ALANDO SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00137-FL-1)


Submitted:   March 22, 2010                 Decided:   April 9, 2010


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Andrea T. Stubbs, Assistant Federal Public Defenders, Raleigh,
North   Carolina, for Appellant.   George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Frederick Alando Smith pled guilty to bank robbery, 21

U.S.C. § 2113(a) (2006), and was sentenced to ninety-five months

in   prison.         Smith    appeals,       contending           that       his    sentence      is

unreasonable.        We affirm.



                                                 I

               Smith’s       base   offense           level       was     20.            See     U.S.

Sentencing Guidelines Manual § 2B3.1(a) (2008).                               Two levels were

added because the property of a financial institution was taken,

see USSG § 2B3.1(b)(1), and three levels were subtracted for

acceptance of responsibility, see USSG § 3E1.1.                                    Smith’s total

offense level was 19.               He had eleven criminal history points,

placing    him      in   criminal         history         category      V.         His     advisory

Guidelines range was 57-71 months.

               At   sentencing,       argument            focused    on   the       Government’s

motion for upward departure, in which the Government asked that

Smith     be    sentenced      as     a    de        facto       career      offender.           The

Government      observed       that       many       of    Smith’s      offenses         were    too

remote to have been assigned criminal history points or were not

counted for other reasons.                   Those crimes included common law

robbery, assault with a deadly weapon inflicting serious injury,

misdemeanor         assault,    passing          worthless          checks         (over       twenty

counts),       communicating          threats,             and      possession           of     drug

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paraphernalia.          The Government contended that criminal history

category      V    failed    to     adequately         reflect       the    seriousness    of

Smith’s past criminal conduct or the likelihood that he would

commit future crimes.               Smith, through counsel, replied that a

sentence       within       the     advisory         Guidelines         range     would     be

sufficient to satisfy sentencing purposes.

              After     hearing         from    counsel       and    inviting     Smith    to

speak, the district court concluded that a sentence outside the

advisory Guidelines range was appropriate, and sentenced Smith

to ninety-five months in prison.                       In pronouncing sentence, the

court specifically mentioned many of the 18 U.S.C. § 3553(a)

(2006)       sentencing           factors,          including:        the      nature      and

circumstances of the offense; the need to protect the public

from further crimes; the need to promote respect for the law;

and    the    need    to    deter       further      criminal        conduct.     The    court

commented         especially      about        Smith’s       criminal       history,     which

included      engaging      in    larceny       over     a    twenty-four-year         period.

These factors, the court found, warranted a sentence above the

advisory Guidelines range, but lower than the sentence advocated

by    the    Government.          The    court      added     that    it    had   considered

imposing a sentence greater than ninety-five months.                                  However,

mitigating circumstances, including Smith’s physical and mental

health,      dissuaded       the     court       from        imposing      a   more     severe

sentence.

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              The court commented that it could arrive at a ninety-

five-month sentence another way: by granting the Government’s

departure motion.           The court explained that, by following the

methodology        set    forth    in    the        Guidelines,        it    would    reach    a

Guidelines range of 77-96 months and sentence Smith to ninety-

five months in prison.



                                               II

              We review a sentence for reasonableness, applying an

abuse-of-discretion standard.                   Gall v. United States, 552 U.S.

38, 51 (2007); see also                 United States v. Seay, 553 F.3d 732,

742    (4th   Cir.),      cert.    denied,          130    S.    Ct.   127    (2009).       Our

initial review is for “significant procedural error,” including

“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.”          Gall, 552 U.S. at 51.

              We   next    “consider          the    substantive       reasonableness         of

the    sentence     imposed.”           Id.         At    this    stage,     we    “take    into

account the totality of the circumstances, including the extent

of    any   variance      from    the    Guidelines             range.”      Id.      “If   the

district      court      decides        to     impose       a     sentence        outside    the

                                                4
Guidelines range, it must ensure that its justification supports

‘the degree of the variance.’”               United States v. Evans, 526 F.3d

155,   161    (4th    Cir.),       cert.    denied,     129        S.    Ct.    476    (2008)

(quoting Gall, 552 U.S. at 51).

             Our review of the record convinces us that Smith’s

ninety-five-month           variant        sentence         was     procedurally          and

substantively        reasonable.          First,    there         were    no    significant

procedural errors in the sentence:                  the district court properly

calculated     Smith’s       advisory      Guidelines        range;       considered      the

§ 3553(a) factors; and explained that it was varying from the

Guidelines range because that range did not adequately account

for    the   nature     and       circumstances        of    the        offense,      Smith’s

criminal     history,       and    the    need    to   protect          the    public     from

further financial crimes.

             Additionally,           the         sentence          is         substantively

reasonable.           The    district       court      considered             the   parties’

arguments     and    supported      the    twenty-four-month             upward     variance

with    a    thoughtful       analysis      of     relevant        § 3553(a)        factors.

Notably,     the     court     discussed         Smith’s     extensive          history    of

larceny, the harm his crimes had caused, and his demonstrated

lack of respect for the law.




                                             5
                                         III

                Smith contends that his sentence was the result of an

upward     departure    under   the    Guidelines.         See   USSG      § 4A1.3.    He

takes issue with the methodology used by the district court in

calculating his departure sentence.

             The district court offered two separate rationales for

imposing    a     sentence   above    Smith’s         advisory   Guidelines     range:

(1) the     § 3553(a)    statutory       factors;       and   (2)    the    Guidelines

departure provisions. In Evans, we stated:

      [A]fter calculating the correct Guidelines range, if
      the district court determines that a sentence outside
      that range is appropriate, it may base its sentence on
      the Guidelines departure provisions or on other
      factors so long as it provides adequate justification
      for the deviation. . . .

      When . . . a district court offers two or more
      independent rationales for its deviation, an appellate
      court cannot hold the sentence unreasonable if the
      appellate court finds fault with just one of these
      rationales.

Id.   at    164-65.    Under    Evans,      because      we   have   found     Smith’s

variant     sentence--imposed        using      the    § 3553(a)     factors--to      be

procedurally and substantively reasonable, there is no need to

address     the    reasonableness      of       the    same   sentence      under     the

alternative rationale.




                                            6
                               IV

          We accordingly affirm.    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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