                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4949


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PHILIP JOE GUYETT, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00040-BR-1)


Submitted:   February 8, 2011             Decided:   March 18, 2011


Before SHEDD, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, 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Unpublished opinions are not binding precedent in this circuit.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:

                Philip Joe Guyett, Jr., pleaded guilty to three counts

of mail fraud, in violation of 18 U.S.C.A. § 1341 (West Supp.

2010).      The district court sentenced Guyett to ninety-six months

of    imprisonment      and   he   now   appeals.        Finding   no    error,   we

affirm.

                Guyett argues that the sentence is procedurally and

substantively        unreasonable.             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. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,

130   S.    Ct.   290   (2009).     In    so    doing,   we   first     examine   the

sentence for “significant procedural error,” including “failing

to calculate (or improperly calculating) the [g]uidelines range,

treating the [g]uidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence

based      on   clearly   erroneous      facts,     or   failing   to    adequately

explain the chosen sentence . . . .”                 Gall, 128 S. Ct. at 597.

Finally, we then “‘consider the substantive reasonableness of

the sentence imposed.’”            United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).

                Guyett first argues that the district court erred in

failing to consider departures under the sentencing guidelines

before imposing a variant sentence, relying on our decision in

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United       States    v.   Moreland,   437       F.3d    424    (4th   Cir.      2006).

Guyett’s argument is foreclosed, however, by our recent decision

in United States v. Diosdado-Star, 2011 WL 198658, *3-*6 (4th

Cir. Jan. 24, 2011), in which we recognized that Moreland had

been   overruled       by   the   Supreme       Court’s   decisions     in   Gall     and

Rita v. United States, 551 U.S. 338 (2007).                         As we may not

overrule this court’s binding precedent, United States v. Simms,

441 F.3d 313, 318 (4th Cir. 2006) (“[a] decision of a panel of

this court becomes the law of the circuit and is binding on

other panels unless it is overruled by a subsequent en banc

opinion of this court or a superseding contrary decision of the

Supreme Court” (internal quotation omitted)), this claim fails.

               Guyett next argues that the sentence is substantively

unreasonable.          We have thoroughly reviewed the record, however,

and reject this contention.             See United States v. Abu Ali, 528

F.3d 210, 271 (4th Cir. 2008) (even if appellate court concludes

that     a    different     sentence    might       be    appropriate,        that    is

insufficient to justify reversal of the district court).

               Accordingly,       because        Guyett’s       sentence     is      both

procedurally          and   substantially         reasonable,      we      affirm     the

judgment of the district court.                 We dispense with oral argument

because the facts and legal contentions are adequately presented




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in the materials before the court and argument would not aid in

the decisional process.

                                                       AFFIRMED




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