                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5252


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

NICHOLAS OHIN, a/k/a Shaka,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:08-cr-00026-HCM-FBS-1)


Argued:   May 14, 2010                      Decided:   June 16, 2010


Before GREGORY, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Norfolk, Virginia, for Appellant.   Robert Edward Bradenham II,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.   ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Frances H. Pratt, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant.    Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Nicholas    Ohin     appeals        his        sentence     of   276   months’

imprisonment, a sentence that is higher than the top of the

Sentencing Guidelines range adopted by the district court.                        Ohin

contends the district court committed various procedural errors

in determining his sentence.          For the reasons set forth below,

we find no merit to Ohin’s assertions and affirm the judgment of

the district court.



                                      I.

      Without a written plea agreement, Ohin pled guilty to two

counts of carjacking, in violation of 18 U.S.C. § 2119.                           The

convictions arose from two February 2007 incidents that occurred

in Newport News, Virginia.           During the first (“Count I”), Ohin

forced a female delivery driver into her vehicle after grabbing

and repeatedly striking her in the back of the head with a

screwdriver   when   she    tried    to       flee.       After    driving   several

blocks, Ohin pushed the woman out of the vehicle.                      The woman was

treated at a local hospital and hospitalized for a week due to

her   extensive   injuries. 1       Two       days    later     (“Count   II”),   Ohin


      1
       The treating physician described the woman’s injuries as
follows:
     [She] had a severe distortion of her face due to the
     swelling that was most significant around her eyes and
     bleeding in the left eye.   Her scalp was filled with
(Continued)
                                          2
entered a vehicle stopped at an intersection and forced the male

driver to exit.       The driver reported the incident, and later in

the   day,   a    police   officer   observed   Ohin   driving   the   stolen

vehicle.     Ohin engaged in a high speed attempt to evade capture,

but was ultimately stopped and arrested.

      After hearing the parties’ arguments, the district court

agreed with Ohin that the PSR miscalculated one component of the

Guidelines calculation related to the offense characteristics of

Count II.        The court recalculated the Guidelines range using a

lower offense level, which resulted in Ohin receiving a total

combined offense level of 31.              When coupled with a criminal

history category of VI, 2 Ohin’s Guidelines range was calculated

to be 188 to 235 months’ imprisonment.

      Next, the district court permitted the Government to call

the victim of Count I to testify.               She described the events




     fresh and dried blood from multiple lacerations.   Her
     face was so badly beaten that it was difficult to see
     her facial features.     Her abdomen was bruised and
     extremely tender.   Multiple lacerations with bleeding
     were over the abdomen, both arms and her back.
(J.A. 88.)
     2
        The pre-sentence report (“PSR”) identified numerous
convictions, arrests, and pending charges, primarily involving
larceny and possession of stolen goods, assault, and possession
and distribution of controlled substances. These offenses dated
from 1995 (age 19) through the time of the carjackings (2007).
Based on these charges, the PSR placed Ohin in the highest
criminal history category, Category VI.



                                       3
surrounding     that       incident,      and         testified     Ohin    stabbed       her

approximately        22    times     with       a     screwdriver.          She     further

testified that although her physical wounds had since healed,

she was “scared to death to go anywhere by” herself and was

still undergoing regular mental health therapy.                             Ohin did not

cross-examine the witness, or present any other evidence.

       The district court then allowed both parties to allocate as

to   an    appropriate      sentence.               The    Government      contended     the

Guidelines range was too low and asked the court to impose a

sentence “toward” the statutory maximum because there was not

“any more severe case that could have occurred [in Count I]

outside of [the victim] being killed by this defendant.”                                (J.A.

61-62.)       Ohin   replied       that     a       within-Guidelines       sentence      was

appropriate in light of his acceptance of responsibility, the

need    for   substance     abuse    treatment,             and   the   ability    to    earn

restitution for the victim upon release. 3

       The district court stated “the starting point when a person

is     considering    an    appropriate             sentence      under    the    statutory

sentencing     factors      should     be       the       maximum   sentence      available

under the statute, because it is this kind of case for which the

maximum was contemplated.”             (J.A. 66.)            It then noted that Ohin


       3
       Neither party requested a departure, nor did                                the    PSR
provide notice of any grounds for a departure sentence.



                                                4
“deserves some type of credit” for pleading guilty, but then

focused        its        comments      on      the     “extremely          troubling         and

substantial” injuries the victim in Count I received, as well as

Ohin’s extensive criminal history.                          (J.A. 67.)        The district

court thus concluded that a “varying sentence greater than the

maximum under the guidelines is appropriate . . . because there

are    very    few        factors      to    mitigate       what   would     be    a   maximum

sentence       under       the    statute.”           (J.A.    67.)       Accordingly,         it

sentenced Ohin to 276 months’ imprisonment on Count I and 180

months on Count II, to be served concurrently.

       The district court subsequently also set forth its reasons

for imposing this sentence in a written opinion and order.                                    The

written       order        delineated          Ohin’s       offenses,       the     statutory

maximums,       and       the    properly-calculated           Guidelines         range.       It

outlined the          §    3553(a)      factors      and     reiterated     its     duties     in

imposing a sentence, including the circumstances when a variance

sentence is appropriate.                    The court then held that a Guidelines

sentence “did not serve the factors listed under 18 U.S.C. §

3553(a)” because while Ohin “should receive some benefit from

entering a guilty plea . . . such a plea was the only mitigating

factor concerning the term of imprisonment imposed.”                               (J.A. 80.)

It    stated    that       it    was    important       to    look    not    just      “to    the

advisory      Guidelines         range,       but    also     to   the   maximum       term    of

imprisonment provided by the statute” and “it was difficult to

                                                 5
imagine a worse case under the statute than this one and . . .

this case is the type for which the maximum term of imprisonment

was contemplated.”          (J.A. 80.)             Ohin    noted    a   timely      appeal,

and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742.



                                           II.

     Ohin       contends    his     sentence       is     procedurally    unreasonable

because the district court started its sentencing decision based

on   the    300-month       statutory         maximum       and    “worked      down”      to

determine a sentence rather than starting with the 188-235 month

Guidelines range.          He also asserts the district court failed to

explain    why    the   Guidelines       range      was    insufficient       and    why    a

departure       sentence    would    not      adequately      address     its    concerns

before deciding to impose a variance sentence.                            Lastly, Ohin

maintains that the court did not adequately explain the basis

for its sentence.          For these reasons, he requests that we vacate

the sentence and remand for resentencing.

     We review any sentence, “whether inside, just outside, or

significantly       outside       the   Guidelines          range,”     for     abuse      of

discretion.       Gall v. United States, 552 U.S. 38, 41 (2007).                        The

Supreme Court delineated our sentencing review process in Gall:

first,     we     “ensure     that      the       district     court     committed         no

significant procedural error.”                Id. at 51.          If, and only if, we

                                              6
find    the     sentence       procedurally        reasonable,             then       we     will

“consider the substantive reasonableness of the sentence imposed

. . . .”        Id.    Procedural errors include “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.”

Id.

       Ohin’s    first      argument      centers       on    the    district          court’s

statement from the bench that “the starting point when a person

is    considering      an    appropriate         sentence      under       the     statutory

sentencing      factors      should    be    the    maximum         sentence       available

under the statute . . . .”                (J.A. 66.)         Read in isolation, this

statement       is    incorrect.          “[T]he    Guidelines         should          be    the

starting point and the initial benchmark” of sentencing.                                    Gall,

552 U.S. at 49 (emphasis added).                   Read in context, however, we

conclude that the statement does not require us to vacate Ohin’s

sentence      because       the   district        court      undertook           the       proper

analysis before determining what sentence to impose.

       For example, the district court’s written opinion clearly

sets    out     the   proper      basis     for    determining         a    sentence          and

reflects the court’s statement from the bench on the maximum



                                             7
sentence available was a misstatement that did not guide the

court’s actual determination.

         The Court must fashion a sentence that is
    “sufficient, but not greater than necessary” to serve
    the sentencing factors set forth under 18 U.S.C. §
    3553(a).   United States v. Davenport, 445 F.3d 366,
    370 (4th Cir. 2006). First, the Court must determine
    whether or not the sentencing range suggested by the
    advisory Guidelines serves these factors.   See, e.g.,
    United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
    2006). . . . If the resulting sentence still does not
    serve the § 3553(a) factors, then the Court may impose
    a variance sentence, i.e., a sentence that does not
    fall within the advisory Guidelines range, provided
    that the variance sentence falls within any statutory
    limitations and is “sufficient, but not greater than
    necessary, to comply with the purposes of [18 U.S.C. §
    3553(a)(2).”   Davenport, 445 F.3d at 370 (citation
    omitted).

(J.A. 79.)   (Emphasis added.)

     Even prior to its “starting point” statement, the district

court had correctly calculated Ohin’s Guidelines range. 4        See

United States v. Engle, 592 F.3d 495, 499-500 (4th Cir. 2010).

It then listened to and considered the parties’ arguments as to

an appropriate sentence.        See id. at 500.    Addressing the §

3553(a) factors – specifically, the nature and characteristics

of the offense as well as the defendant’s criminal history – the

court    concluded   that     an   above-Guidelines   sentence   was

appropriate.   See id.      While the court considered the statutory


     4
       Ohin concedes the district court correctly calculated the
Guidelines range and he raises no claim of error in that regard.



                                   8
maximum       in   arriving    at    that    sentence,    it   did   not    make    the

statutory maximum the sole basis for its decision.                        The court’s

methodology satisfied Gall and does not warrant reversal.                           See

id. at 500; Gall, 552 U.S. at 49-52.

       Next, Ohin asserts that the district court’s approach to

the sentencing process was improper because it moved directly

from    the    calculation      of    the   Guidelines    range      to   imposing    a

variance       sentence       without       first   considering       whether       the

Guidelines’        departure    provisions       would   adequately       address   its

concerns.          That argument is foreclosed by this Court’s opinion

in United States v. Evans, 526 F.3d 155 (4th Cir. 2008).                             In

Evans, we held that although the district court may have erred

in     concluding      certain       Guidelines-based      departure       provisions

applied, because the district court also adequately explained

its sentence in terms of the § 3553(a) factors as a basis for a

variance sentence, Evans’ sentence was reasonable.                        Id. at 164.

In so holding, we stated:

       [A]lthough  adherence   to   the  advisory  Guidelines
       departure provisions provides one way for a district
       court to fashion a reasonable sentence outside the
       Guidelines range, it is not the only way.      Rather,
       after 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.




                                             9
Id.   The district court thus did not err in moving directly to

the § 3553(a) factors and immediately considering a variance

sentence once it determined that an above-Guidelines sentence

was appropriate. 5

      Lastly,   Ohin   asserts   the   district   court    failed   to

adequately explain the basis for its sentence.            The district

court “must make an individualized assessment based on the facts

presented” when it sentences a defendant.     Gall, 552 U.S. at 50.

As we explained in United States v. Carter, 564 F.3d 325 (4th

Cir. 2009), this means:

      the district court must “state in open court” the
      particular reasons supporting its given sentence.  18
      U.S.C. § 3553(c) (2006).       In doing so, “[t]he
      sentencing judge should set forth enough to satisfy
      the appellate court that he has considered the
      parties’ arguments and has a reasoned basis for
      exercising his own legal decisionmaking authority.”
      Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,

      5
       Ohin’s argument that the district court was required to
follow an incremental approach to increase his sentence based on
criminal history also fails. While the Guidelines require that
a district court use an incremental approach to imposing a
departure sentence based on a underrepresentation of criminal
history when the defendant is already in category VI, United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (citing
U.S.S.G. § 4A1.3(a)(4)(B)), we have never extended that
requirement to a variance sentence.     Here, the court clearly
imposed a variance sentence, and thus was not obligated to
follow the approach mandated for departure sentences.        See
Irizarry v. United States, 553 U.S. 708, ___, 128 S. Ct. 2198
(2008) (noting differences between departure sentences and
variance    sentences  and   holding   the   Guidelines   notice
requirements for departure sentences do not apply to variance
sentences).



                                 10
     2468 (2007).   This not only “allow[s] for meaningful
     appellate   review”  but   it  also   “promote[s]   the
     perception of fair sentencing.”    Gall, 128 S.Ct. at
     597.    “Where the defendant or prosecutor presents
     nonfrivolous   reasons   for  imposing    a   different
     sentence” than that set forth in the advisory
     Guidelines, a district judge should address the
     party’s arguments and “explain why he has rejected
     those arguments.” Rita, 127 S. Ct. at 2468.

Id. at 328.      In Carter, we concluded the district court failed

to “justify Carter’s sentence with an individualized rationale.”

Id. at 328-29.         The problem in Carter was that the district

court failed to explain how the § 3553(a) factors “applied to

Carter,” and that its “asserted ‘reasons’ could apply to any

sentence, regardless of the offense, the defendant’s personal

background, or the defendant’s criminal history.”                    Id. at 329.

     In    contrast,       the   district     court    in     the    case    at    bar

identified and expounded upon specific reasons that it felt an

above-Guidelines sentence was appropriate for Ohin.                         It cited

the victim of Count I’s extensive injuries and hospitalization,

as well as her ongoing mental and psychological problems.                           It

also noted that it did not find Ohin’s drug use “alone” to be a

mitigating factor because the crime and victim “had nothing to

do with the drug culture and was in no way involved in it.”

(J.A.    81.)    Lastly,     the   court      relied   on     Ohin’s   “troubling”

criminal history, which gave it “little reason to believe that

[Ohin]    will   be    a   law-abiding    citizen      upon    his    release     from

confinement.”         (J.A. 81.)     These statements were specific to

                                         11
Ohin’s background and the nature of the offenses for which he

had been convicted.            A lengthier exposition is not necessary

especially where, as here, the relevant facts are undisputed and

their   connection        to    an   above-Guidelines      sentence     readily

apparent.    E.g., Gall 552 U.S. at 50; United States v. Lynn, 592

F.3d 572, 576 (4th Cir. 2010).               The court’s statements satisfy

us that it “ha[d] considered the parties’ arguments and ha[d] a

reasoned    basis   for    exercising    [its]    own   legal    decisionmaking

authority” in light of § 3553(a).                Carter, 564 F.3d at 328.

Accordingly, there is no basis for vacating the sentence and

requiring additional exposition.



                                      III.

     For    the   aforementioned      reasons,     we   affirm    the   district

court’s judgment.

                                                                        AFFIRMED




                                        12
