                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4448


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TRACEY TARRELL THORPE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.    W. Earl Britt,
Senior District Judge. (4:11-cr-00093-BR-1)


Submitted:   January 29, 2013             Decided:   March 12, 2013


Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tracey      Tarrell    Thorpe             appeals        the    district          court’s

judgment imposing an eighty-seven-month sentence following his

guilty plea to two counts of theft of government property, in

violation of 18 U.S.C. § 641 (2006), and one count of theft of

the    personal     property    of    another,               in    violation         of    18    U.S.C.

§ 661 (2006).        Thorpe argues that his sentence was procedurally

unreasonable because the district court based the length of his

sentence in part on his need for drug treatment, in violation of

Tapia v. United States, 131 S. Ct. 2382 (2011).                                          Thorpe also

argues that his sentence was substantively unreasonable because

there was no significant justification for an upward departure

of more than four years from his Guidelines range.                                   We affirm.

              We review Thorpe’s sentence for reasonableness under

an abuse of discretion standard.                             Gall v. United States, 552

U.S.    38,   46,    51    (2007).         We       first         review      for        “significant

procedural      error[s],”       including               “failing            to     calculate       (or

improperly      calculating)         the       Guidelines               range,       treating       the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)     [(2006)]      factors,       .        .    .    or       failing      to     adequately

explain the chosen sentence.”                   Gall, 552 U.S. at 51.                       To avoid

procedural        error,       the     district                   court           must     make     an

“individualized        assessment,”        wherein                it   applies       the    relevant



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§ 3553(a) factors to the specific facts of the defendant’s case.

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

            Because Thorpe did not raise a Tapia objection in the

district   court,      our    review     is       for    plain       error.       See      United

States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (applying

plain   error    review      to     challenge       of    sentence         based      on   Tapia

raised for first time on appeal).                   In the sentencing context, an

error     affects      substantial         rights         only        if      there        is    a

nonspeculative basis to believe that the sentence the defendant

received was longer than the sentence he would have received but

for the error.         See United States v. White, 405 F.3d 208, 223

(4th Cir. 2005); United States v. Hughes, 401 F.3d 540, 548 (4th

Cir. 2005).

            In    Tapia,      the    Supreme        Court       held       that      18    U.S.C.

§ 3582(a) (2006) “precludes sentencing courts from imposing or

lengthening       a     prison        term         to     promote          an        offender’s

rehabilitation”.          131 S. Ct. at 2391.                       Because the district

court   here     merely      indicated       at    the        sentencing        hearing     that

Thorpe would have the opportunity to enter a drug rehabilitation

program, we conclude that the district court did not impose a

sentence to promote rehabilitation.                      See id. at 2392 (“A court

commits     no    error        by     discussing              the     opportunities             for

rehabilitation        within      prison      or        the     benefits        of    specific

treatment or training programs.”).                      Even if the district court

                                              3
did   commit       plain          error   in    light    of    Tapia,       Thorpe      fails    to

establish that his substantial rights were affected because he

proffers only speculation, and no evidence, that he received a

longer sentence in promotion of his rehabilitation.

             Thorpe also argues that his sentence was substantively

unreasonable.               We review the substantive reasonableness of a

sentence for abuse of discretion, “tak[ing] into account the

totality     of     the          circumstances,        including      the    extent       of    any

variance from the Guidelines range.”                          Gall, 552 U.S. at 51.              In

reviewing      a        variance,         we    must    give    due     deference        to     the

sentencing court’s decision.                      United States v. Diosdado-Star,

630 F.3d 359, 366 (4th Cir. 2011).                             The district court “has

flexibility in fashioning a sentence outside of the Guidelines

range” and need only “set forth enough to satisfy the appellate

court that [it] has considered the parties’ arguments and has a

reasoned     basis”              for   its     decision.        Id.     at    364       (internal

quotation marks omitted).                      While “a major departure should be

supported      by       a       more   significant       justification        than       a    minor

one[,]   .   .      .       a    district      court    need   not    justify       a   sentence

outside the Guidelines range with a finding of extraordinary

circumstances.”                 Id. at 366 (internal quotation marks omitted).

             The district court granted an upward departure after

considering arguments from both parties.                         Moreover, the district

court adequately explained its reasons for granting an upward

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departure, noting Thorpe’s extensive criminal history and high

likelihood of recidivism and citing various § 3553(a) factors to

justify the upward departure.          Under the deference due to the

district   court,   we    conclude   that     Thorpe’s    eighty-seven-month

sentence is substantively reasonable.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions     are   adequately    presented    in   the    materials

before   this   court    and   argument     will   not   aid   the   decisional

process.

                                                                       AFFIRMED




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