                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4502


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

JANELL TOVAH FISHER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13-cr-00024-HEH-1)


Submitted:   January 27, 2014             Decided:   February 11, 2014


Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark Bodner, Fairfax, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Erik S. Siebert, Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Janell         Tovah      Fisher       appeals      from      the      120-month

sentence imposed by the district court after his guilty plea to

possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(C) (2012).                    On appeal, Fisher claims

that his sentence is procedurally and substantively unreasonable

because the district court (1) overstated his criminal history

and failed to consider the 18 U.S.C. § 3553(a) (2012) factors

when    imposing      an       upward    variance;       (2)    failed        to   consider

unwarranted sentencing disparities that could result from the

imposition       of     the      upward     variance;         and      (3)      imposed   an

excessively lengthy upward variance.                   We affirm.

            We review a sentence for reasonableness, applying an

abuse of discretion standard.                  Gall v. United States, 552 U.S.

38, 46, 51 (2007).              We first review for significant procedural

error, and, if the sentence is free from such error, we then

consider the substantive reasonableness of the sentence.                             Id. at

51.     Procedural       error       includes       “improperly     calculating[]         the

Guidelines range, treating the Guidelines as mandatory, failing

to    consider    the      §    3553(a)     factors,      .     .   .    or     failing   to

adequately    explain          the   chosen        sentence.”       Id.         Substantive

reasonableness is determined by considering “the totality of the

circumstances, including the extent of any variance from the

Guidelines range.”             Id.      An upward variance is permitted where

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justified by the § 3553(a) factors.                    See id.      We “must give due

deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance,” and

the fact that we might find “a different sentence appropriate is

insufficient to justify reversal of the district court.”                            Id.

                 We    first      conclude     that      Fisher’s    above-Guidelines

sentence         is    procedurally        reasonable. *       The       district     court

properly calculated Fisher’s Guidelines range (and Fisher does

not    contend         otherwise),    treated      the     range    as    advisory,       and

adequately            explained     the     selected      sentence.          The     court

specifically explained that Fisher’s above-Guidelines sentence

was    warranted          because    the     offense     indicated       involvement       in

significant drug-trafficking activity, Fisher had an extensive

criminal record, and Fisher’s prior experience with the criminal

justice          system    lacked    the     desired      deterrent       effect.          In

addition, the court considered that the total offense level was

inadequate to reflect Fisher’s criminal history.                           Further, the

court       explicitly       addressed       Fisher’s      arguments,      noting         that

counsel’s arguments had persuaded it to impose a sentence lower

than       the    sentence     advocated      by   the     Government.        While       the

district court did not specifically address Fisher’s argument


       *
       The advisory Guidelines range was seventy to eighty-seven
months.



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regarding      unwarranted       sentencing         disparities,        the     court   did

state   that     it    took   into    account       all   the     sentencing      factors.

Because     the       district        court       clearly        considered       Fisher’s

individual circumstances, we conclude that Fisher’s sentence is

procedurally reasonable.

            We also hold that Fisher’s sentence is substantively

reasonable,       considering        the     totality       of    the    circumstances,

including      the     extent    of    the        variance.          Although    Fisher’s

sentence    is    nearly      three     years       above      the    high-end     of   the

advisory Guidelines range, the district court did not abuse its

discretion in determining that such a deviation was justified by

the § 3553(a) factors, including Fisher’s criminal history, the

need to protect the public, and the need to provide adequate

deterrence.       Thus, we conclude that Fisher’s 120-month sentence

is reasonable.

            Accordingly, 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

this court and argument would not aid the decisional process.



                                                                                  AFFIRMED




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