                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4220


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRY SCOTT HYDER, a/k/a Ryan Terry Hyder, a/k/a Ryan Fred
Wilson,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00070-MR-1)


Submitted:   November 30, 2012            Decided:   December 17, 2012


Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following his guilty plea to wire fraud, in violation

of   18   U.S.C.A.      § 1343      (West   Supp.        2012),    the       district   court

sentenced Terry Scott Hyder to eighty-four months’ imprisonment,

which     reflected       a     twenty-one-month              variance       above     Hyder’s

advisory    Guidelines         range.       On     appeal,       Hyder       challenges    the

substantive reasonableness of this sentence.                             For the reasons

that follow, we affirm.

            We review any criminal sentence, “whether inside, just

outside,    or    significantly         outside         the    Guidelines       range,”    for

reasonableness,          “under         a      deferential         abuse-of-discretion

standard.”       United States v. King, 673 F.3d 274, 283 (4th Cir.),

cert. denied, 81 U.S.L.W. 3164 (U.S. Oct. 1, 2012) (No. 11-

10786); see Gall v. United States, 552 U.S. 38, 51 (2007).                                When

evaluating       a   sentence         for      substantive         reasonableness,         we

consider whether the sentencing court abused its discretion in

concluding       that     the       relevant       18    U.S.C.     §        3553(a)    (2006)

sentencing       factors        supported          the    selected           sentence     “and

justified a substantial deviation from the Guidelines range.”

Gall, 552 U.S. at 56.

            When        the     district       court      imposes        a    departure    or

variance    sentence,         “we    consider      whether       the    sentencing       court

acted reasonably both with respect to its decision to impose

such a sentence and with respect to the extent of the divergence

                                               2
from    the     sentencing       range.”            United    States         v.    Hernandez-

Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).                                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.                                    United

States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.) (quoting

Rita v. United States, 551 U.S. 338, 356 (2007)) (alteration

omitted), cert. denied, 131 S. Ct. 2946 (2011).

              We   discern      no    abuse    of     discretion        in    the    district

court’s decision to vary upward from Hyder’s advisory Guidelines

range to impose an eighty-four-month sentence.                          Having sustained

one of Hyder’s objections to the calculation of his advisory

Guidelines      range,     Hyder’s      revised       sentencing        range       was    51-63

months’ imprisonment.            The district court first opined that this

range did not adequately reflect the seriousness of the offense.

Specifically, Hyder’s scheme defrauded multiple victims of more

than $775,000.        Four of Hyder’s victims were over the age of

seventy, and the youngest victims were in their mid-fifties.

Also    supporting       the    upward     variance         was   the    fact       that    the

conduct       underlying       this    offense        was    very     similar        to    that

involved in Hyder’s prior federal mail fraud conviction.                                    The

court was also vexed by the fact that Hyder was serving his term

of    supervised    release      for     the       mail   fraud     offense       during    the

                                               3
instant offense conduct.                Thus, the court surmised, the fifty-

six-month sentence Hyder received on the mail fraud conviction

did not have a sufficient deterrent effect and a longer period

of incarceration was necessary to adequately deter Hyder from

future fraudulent conduct and to protect the public.

             In    summary,       the     district    court     concluded       that     a

eighty-four-month           sentence      was     necessary     pursuant      to       the

relevant § 3553(a) factors, which included the seriousness of

the offense, § 3553(a)(2)(A); the history and characteristics of

the defendant, § 3553(a)(1); and the need to both protect the

public    and       deter     future       criminal       conduct.       18      U.S.C.

§ 3553(a)(2)(B),         (C).           Because    the     district     court      amply

justified both its variance decision and the extent thereof, we

conclude there was no abuse of discretion.

             Hyder contends that the district court’s reliance on

these sentencing factors was unreasonable, though, because they

were already accounted for in the calculation of his advisory

Guidelines      range.       We   disagree.          As   the   Fifth   Circuit        has

explained,        post-Booker *     Supreme       Court     precedent     permits        a

sentencing court to “rely upon factors already incorporated by

the Guidelines to support a non-Guidelines sentence.”                            United

States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (citing

     *
         United States v. Booker, 543 U.S. 220 (2005).



                                            4
United States v. Williams, 517 F.3d 801, 810-11 & n.5 (5th Cir.

2008)); accord United States v. Williams, 526 F.3d 1312, 1323–24

(11th Cir. 2008).

           For these reasons, we affirm the criminal judgment.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the material before this

court and argument would not aid the decisional process.

                                                                  AFFIRMED




                                    5
