                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 09-5209


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

DAVID CICALESE,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.      John Preston Bailey,
Chief District Judge. (2:08-cr-00024-REM-JSK-1)


Submitted:   August 25, 2010               Decided:   September 15, 2010


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Katy J. Cimino, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant.   Stephen Donald Warner, Assistant
United States Attorney, Elkins, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            David Cicalese pled guilty, pursuant to a written plea

agreement, to one count of possession of child pornography, in

violation    of     18   U.S.C.A.    § 2252A(a)(5)(B)      (West    Supp.   2010).

The district court calculated Cicalese’s sentencing range under

the U.S. Sentencing Guidelines Manual (“USSG”) (2008) at 87 to

108 months’ imprisonment and imposed a variant sentence of 60

months’ imprisonment.           The court also imposed a lifetime term of

supervised release.            Cicalese now appeals.       Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious issues for appeal, but

suggesting    that       the   lifetime   term    of   supervised    release   is

substantively unreasonable.             Cicalese was advised of his right

to file a pro se supplemental brief, but he has not done so.

The Government has declined to file a brief and does not seek to

enforce the plea agreement’s appeal waiver. *              We affirm.

            We    review       the   district    court’s   sentence,    “whether

inside, just outside, or significantly outside the Guidelines

range,”     under    a    “deferential        abuse-of-discretion     standard.”


     *
       Cicalese waived his right to appeal his sentence in the
plea agreement. Because the Government fails to assert the
waiver as a bar to the appeal, however, we may consider the
issue raised in the Anders brief and conduct an Anders review.
See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007).



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Gall v. United States, 552 U.S. 38, 41 (2007).                                 In conducting

this    review,      we    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

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

based    on   clearly        erroneous      facts,          or    failing      to    adequately

explain the chosen sentence.”                       Id. at 51.            “When rendering a

sentence,      the        district      court        must        make    an   individualized

assessment based on the facts presented,” applying the “relevant

§ 3553(a)     factors       to    the    specific         circumstances         of       the     case

before    it.”        United       States       v.    Carter,           564   F.3d       325,     328

(4th Cir. 2009) (internal quotation marks and emphasis omitted).

The district court must also “state in open court the particular

reasons supporting its chosen sentence” and “set forth enough to

satisfy”      this    court       that     it       has     “considered        the        parties’

arguments     and    has     a    reasoned      basis       for     exercising           [its]   own

legal decisionmaking authority.”                     Id. (internal quotation marks

omitted).

              If the sentence is free from procedural error, we then

review it for substantive reasonableness.                           Gall, 552 U.S. at 51.

“Substantive reasonableness review entails taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’”                        United States v. Pauley,

                                                3
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).     Even if we would have imposed a different sentence, “this

fact alone is ‘insufficient to justify reversal of the district

court.’”      Id. at 474 (quoting Gall, 552 U.S. at 51).

              In this case, the district court correctly calculated

and    considered       the    Guidelines         range      and     heard    argument          from

counsel and allocution from Cicalese.                          The court also gave an

individualized assessment of Cicalese’s case, concluding that a

sentence of 60 months’ imprisonment was warranted in light of

the nature and circumstances of the offense, Cicalese’s history

and    characteristics,         and    the       need   to     protect       the    public       and

provide Cicalese with appropriate treatment.                             We conclude that

the     district       court    adequately            explained        its    rationale          for

imposing the variant prison sentence and that the reasons relied

upon    by    the     district    court          are    valid      considerations           under

§ 3553(a)       and    justify        the    sentence        imposed.              See    Pauley,

511 F.3d at 473-76.

              With respect to the term of supervised release, the

statutory       maximum    term   of        supervised         release       for    an    offense

under    18     U.S.C.    § 2252A      is    life,       see    18     U.S.C.A.          § 3583(k)

(West Supp. 2010), and the Sentencing Guidelines recommend that

the statutory maximum be imposed, USSG § 5D1.2(b), p.s.                                   After a

review of the record, we conclude that the district court did

not     abuse    its     discretion         in       imposing      a    lifetime         term    of

                                                 4
supervised release, given the serious nature of Cicalese’s crime

and the need to rehabilitate Cicalese and to protect the public.

             Finally, in accordance with Anders, we have reviewed

the entire record in this case and have found no meritorious

issues for review.            We therefore affirm the district court’s

judgment.     This court requires that counsel inform Cicalese, in

writing,     of    the   right     to   petition    the   Supreme     Court    of   the

United States for further review.                  If Cicalese requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave   to   withdraw      from     representation.       Counsel’s       motion    must

state that a copy thereof was served on Cicalese.                         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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