                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4167


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JASON SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:10-cr-00007-jpj-pms-1)


Submitted:   June 30, 2011                    Decided:   July 6, 2011


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research   and   Writing Attorney,   Abingdon,  Virginia,   for
Appellant. Timothy J. Heaphy, United States Attorney, Debbie H.
Stevens, Special Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jason Smith pled guilty to possession of a prohibited

weapon in prison, in violation of 18 U.S.C. § 1791(a)(2) (2006).

The    district        court      sentenced         him     to        forty-two       months’

imprisonment, twelve months above the advisory Guidelines range.

On    appeal,    Smith     asserts      that      his     sentence       is    unreasonable

because it is longer than necessary to achieve the goals of

sentencing and the district court’s explanation did not justify

the extent of the variance.             We affirm.

            This      court      reviews      a    sentence       for    reasonableness,

applying    an     abuse    of    discretion        standard.            Gall    v.   United

States,    552     U.S.    38,    51    (2007);      see    also       United    States   v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                        This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.               Gall, 552 U.S. at 51.               Smith does

not challenge the procedural reasonableness of his sentence.                              In

assessing    the      substantive       reasonableness           of    the    sentence,   we

“tak[e]     into      account     the      ‘totality        of     the       circumstances,

including       the   extent      of    any       variance       from    the     Guidelines

range.’”     United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007) (quoting Gall, 552 U.S. at 51).                       Although no presumption

of reasonableness attends a district court’s variance sentence,

our review still is through the deferential lens of abuse of

discretion.      Gall, 552 U.S. at 50-51.

                                              2
            Smith’s conviction followed an apparently unprovoked

assault on another inmate using a padlock attached to a belt,

which resulted in the victim suffering a fractured skull and a

subdural     hematoma.         The   district       court       assumed,    as     Smith

alleged, that the victim had raped him several months before the

assault.     The court, however, did not credit Smith’s testimony

that, immediately before the attack, the victim was armed and an

attack was imminent.        The court further observed that Smith had

other options besides self-help and that his desire to avoid a

reputation    for    complaining      to       prison   staff     did    not     justify

eschewing    these    options.       Smith’s       history       of   misconduct      in

prison, coupled with the violent nature of the attack, led the

court to vary upwards.          We conclude that, under the totality of

the circumstances,       the    district        court’s    explanation      justified

the extent of the variance and that the court did not abuse its

discretion in imposing a forty-two-month sentence.

     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 the

court and argument would not aid the decisional process.



                                                                               AFFIRMED




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