                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 06-4076



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


ARTHUR PAUL MARRONE, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (5:04-cr-00228)


Submitted:   July 31, 2008               Decided:   September 10, 2008


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Monica L. Dillon,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Arthur Paul Marrone, III, was convicted by a jury of

assaulting a correctional officer while he was confined at the

Federal Correctional Institution at Beckley, West Virginia, in

violation   of   18    U.S.C.A.    §    111(a)(1),(b)        (West    Supp.   2008).

Although the advisory guideline range for Marrone’s offense was 18-

24 months, the district court imposed a sentence of sixty months

imprisonment.      Marrone appeals his sentence, arguing that the

court’s failure to provide notice before imposing a sentence above

the advisory guideline range was error under Fed. R. Crim. P. 32(h)

and Burns v. United States, 501 U.S. 129 (1991).                He also contends

that the sentence was unreasonable.               We affirm.

            At his sentencing hearing in December 2005, Marrone did

not contest the calculation of the guideline range.                    However, he

objected    to   the   inclusion       in   the    report,     as    fact,    of   the

correctional officer’s testimony that he believed Marrone had tried

to push him over the second tier railing during their struggle.                    He

also objected to information about his involvement in an inmate

protest that occurred after his conviction while he was confined at

the Carter County Correctional Center, in Kentucky.                     The latter

purportedly involved a malfunctioning television set.                  The inmates

put food on the floor at the entrance to their pod and activated an

alarm which brought correctional officers to the area.                   Acting as

the inmate spokesman, Marrone tried without success to persuade an


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officer to enter the pod.    The next day, two confidential sources

told prison officials that Marrone had instigated a scheme to

manufacture weapons, lure a correctional officer into the pod and

take him hostage, and thereby possibly effect an escape from the

prison.

            After overruling Marrone’s objections to the presentence

report, the district court indicated that it was inclined to impose

a sentence above the guideline range based on the aggravated nature

of the instant offense and Marrone’s involvement in the incident at

the Carter County Correctional Center.    The court heard testimony

about the Carter County incident and Marrone’s attorney cross-

examined the witness thoroughly, having made his own investigation

into the incident.    The court concluded that it could disregard

information from the inmates who remained unidentified confidential

sources and still find that Marrone was “deeply involved” in the

incident.     The court then imposed a sentence of sixty months

imprisonment pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2008).    As justification, the court cited (1) the seriousness of

the offense, see § 3553(a)(2)(A), especially Marrone’s attempt to

push the correctional officer over a second story railing, which

would have resulted in serious bodily injury to the officer; (2)

its duty to deter others tempted to attack correctional officers as

Marrone did, see § 3553(a)(2)(B); and (3) the need to protect the




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public from further crimes by Marrone, see § 3553(a)(2)(C), given

that his record indicated little chance of rehabilitation.



                              I.    Notice

           Because Marrone did not object to the lack of notice in

the district court, review of this issue is for plain error.

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).          Rule

32(h) of the Federal Rules of Criminal Procedure requires the

sentencing court to give the parties reasonable notice when it is

considering a departure on a ground not identified as a possible

basis for departure either in the presentence report or in a

party’s prehearing submission. In this case, although the district

court described the above-guidelines sentence as a departure, the

court looked only to the factors set out in § 3553(a).                  The

sentence was thus a variance, rather than a departure.                  See

Irizarry   v.   United   States,    128    S.   Ct.   2198,   2202   (2008)

(“‘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.”).   The Supreme Court held in Irizarry that upward

variances do not require notice under either Rule 32(h) or Burns.

Id. at 2203.    Therefore, no error occurred.




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                            II.    Reasonableness

           Marrone      contends    that   his   sentence    was   unreasonable

because it was greater than necessary to comply with the sentencing

purposes in § 3553(a)(2).         In Gall v. United States, 128 S. Ct. 586

(2007), the Supreme Court set out the standards for appellate

review of sentences as follows:

     Regardless of whether the sentence imposed is inside or
     outside the Guidelines range, the appellate court must
     review the sentence under an abuse-of-discretion
     standard. It must first ensure that the district court
     committed no significant procedural error, such as
     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.
     Assuming that the district court’s sentencing decision is
     procedurally sound, the appellate court should then
     consider the substantive reasonableness of the sentence
     imposed under an abuse-of-discretion standard.

Id. at 597.

           First, we discern no procedural defect in the sentence.

Next, as explained in Gall, when reviewing a sentence outside the

guideline range for substantive reasonableness, the appellate court

should   “take   into    account    the    totality   of    the    circumstances

. . . .”   Gall, 128 S. Ct. at 597.          The court –

     may consider the extent of the deviation, but must give
     due deference to the district court’s decision that the
     § 3553(a) factors, on a whole, justify the extent of the
     variance.   The fact that the appellate court might
     reasonably have concluded that a different sentence was
     appropriate is insufficient to justify reversal of the
     district court.


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Id.

              Marrone relies on United States v. Eura, 440 F.3d 625,

633 (4th Cir. 2006) (holding that sentencing court may not vary

from guideline range based on guideline sentencing ratio for

crack/cocaine       powder),   vacated,   128   S.   Ct.     853   (2008).     His

reliance is misplaced because, assuming it might previously have

been applicable, Eura has been abrogated by Kimbrough v. United

States, 128 S. Ct. 558 (2007).        In light of Gall’s conclusion that

the sentencing court “is in a superior position to find facts and

judge their import under § 3553(a) in the individual case,” id.,

and    that   its    sentencing   decision      should     be    accorded    great

deference, we conclude that the sentence is not substantively

unreasonable.

              Accordingly, we affirm the 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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