                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5072


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KENNETH ROBERT GODSEY,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.  Thomas E. Johnston,
District Judge. (1:08-cr-00016-1)


Submitted:   May 12, 2010                     Decided:   June 3, 2010


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant.     Charles T. Miller, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Kenneth     Robert    Godsey     pled    guilty,      pursuant    to   a

written   plea    agreement,    to   one   count    of     mailing   threatening

communications, in violation of 18 U.S.C. § 876(c) (2006).                     The

district court calculated Godsey’s imprisonment range under the

U.S. Sentencing Guidelines Manual (2007) at 33 to 41 months, but

imposed an upward variance and sentenced Godsey to 60 months’

imprisonment.      Godsey appeals his sentence, arguing that the

district court erred in failing to articulate on the record its

consideration     of   the      sentencing       factors     under    18     U.S.C.

§ 3553(a) (2006). *    Finding no error, 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.”

Gall v. United States, 552 U.S. 38, 41 (2007).                       This review

entails   appellate     consideration       of    both     the   procedural    and

substantive reasonableness of a sentence.                  Id. at 51.        Godsey

does not contest the substantive reasonableness of his sentence.


     *
       Because the Government has not sought enforcement of the
plea agreement’s appeal waiver, we need not consider whether the
waiver is dispositive of this appeal.      Cf. United States v.
Blick, 408 F.3d 162, 168-70 (4th Cir. 2005) (enforcing a plea
agreement’s   appeal   waiver   where  the    Government  sought
enforcement, the issues raised fell within the waiver’s scope,
and no claim was presented that the Government breached its
obligations under the plea agreement).



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             In     determining       whether      a     sentence    is   procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s Guidelines range.                       Id. at 49, 51.        We

must     then     consider    whether     the      district      court    treated      the

Guidelines        as   mandatory,      failed       to    consider     the    18 U.S.C.

§ 3553(a) factors and any arguments presented by the parties,

selected    a     sentence    based     on       “clearly    erroneous       facts,”     or

failed to explain sufficiently the selected sentence.                             Id. at

50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).

             In    evaluating     a    district        court’s      explanation     of    a

selected sentence, this court has held that, although a district

court     must     consider    the     statutory         factors    and   explain      its

sentence, it need not explicitly reference § 3553(a) or discuss

every single factor on the record.                       United States v. Johnson,

445 F.3d 339, 345 (4th Cir. 2006).                     However, the district court

still “must make an individualized assessment based on the facts

presented,” and apply 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 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

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[its]     own    legal     decisionmaking         authority.”            Id.       (internal

quotation       marks    omitted).         The    reasons     articulated           by    the

district court for a given sentence need not be “couched in the

precise language of § 3553(a),” as long as the reasons “can be

matched to a factor appropriate for consideration under that

statute and [are] clearly tied to [the defendant’s] particular

situation.”           United     States    v.     Moulden,    478    F.3d          652,   658

(4th Cir. 2007).

            Because Godsey did not object to the adequacy of the

district    court’s       explanation       for    the     chosen    sentence         “[b]y

drawing     arguments      from     [18    U.S.C.]        § 3553    for        a   sentence

different than the one ultimately imposed,” our review is for

plain   error.          United    States    v.    Lynn,    592     F.3d    572,       577-78

(4th Cir. 2010).          To prevail under this standard, Godsey bears

the   burden     of   establishing        that    plain    error    by    the       district

court affected his substantial rights.                       Id. at 580.             In the

sentencing context, an error affects substantial rights if the

defendant can show that the sentence imposed was longer than

“that to which he would otherwise be subject.”                      United States v.

Washington,       404     F.3d    834,     843     (4th    Cir.     2005)          (internal

quotation marks omitted).

            Here, in addition to stating that it considered the

“[a]dvisory        Guideline[s]          range”     in      determining             Godsey’s

sentence, the district court also evaluated Godsey’s continued

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sending     of     threatening       communications,            even       after    a        prior

conviction for the same offense and a resulting prison sentence

at    the   statutory       maximum,    his      refusal       to    get    help        for   the

psychological problems influencing his decisions to send such

communications,       and     the     number       and     violent         nature       of    the

communications.         The     district         court    thus       clearly       considered

particular        § 3553(a)    factors;          namely,       Godsey’s       history         and

characteristics and the nature and circumstances of his offense.

Further, the district court also evaluated and addressed the

need for the sentence to reflect the seriousness of Godsey’s

offense, to promote respect for the law, to deter Godsey, and to

protect     the    victims     and     the    public,      noting       that       an    upward

variance was justified in light of the violent nature of his

continued threatening communications and his refusal to cease

his criminal behavior.              The district court not only explicitly

stated its consideration of the § 3553(a) factors in accordance

with Gall and this court’s precedents, but also articulated how

the   sentencing      factors       applied      to   this      case.        We     therefore

conclude     that     the     district       court       did    not     plainly         err    in

explaining its decision to impose the 60-month sentence.                                      The

sentence     is     procedurally        reasonable,            and    Godsey       does       not

challenge the substantive reasonableness of the sentence.




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              Finding no abuse of discretion, we affirm the district

court’s judgment.        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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