                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4375


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RAY ALFRED HOTT, II,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00063-JPB-DJJ-1)


Submitted:    January 27, 2009              Decided:   April 2, 2009


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


S. Andrew Arnold, ARNOLD, CESARE & BAILEY, PLLC, Shepherdstown,
West Virginia, for Appellant.    Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ray Alfred Hott, II, pled guilty to possession of a

firearm   after    being    convicted        of   a   felony,    in   violation    of

18 U.S.C. § 922(g)(1) (2006), and was sentenced to 108 months

imprisonment.       Hott appeals his sentence, contending that the

district court erred in departing or varying above the advisory

guideline range, which the court determined to be 33-41 months,

without giving him adequate notice, and that the extent of the

departure rendered the sentence unreasonable.                   We affirm.

           A sentence is reviewed for abuse of discretion.                      Gall

v. United States, 128 S. Ct. 586, 591 (2007).                      First, we must

ensure    that    the    district    court         committed     no   “significant

procedural       error,”     including        improperly         calculating      the

guidelines range, not considering the § 3553(a) factors, relying

on clearly erroneous facts, or giving an inadequate explanation

for the sentence.          United States v. Evans, 526 F.3d 155, 161

(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied,

129 S. Ct. 476 (2008).           We must then consider the substantive

reasonableness of the sentence imposed, “tak[ing] into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range.” Gall, 128 S. Ct. at 597.

If the sentence is outside the guideline range, we “must give

due   deference     to     the   district         court’s   decision     that     the



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§ 3553(a)      factors,      on    a    whole,     justify    the     extent      of   the

variance.” Id.

            Hott argues that the district court erred in departing

or   varying    upward      without      giving    him   adequate     notice      of   its

intention, as is required for a departure.                    See Fed. R. Crim. P.

32(h).      However,      Hott     had     sufficient       notice    of    a   possible

departure      from   the    presentence          report,    where    the       probation

officer    advised    the     court       that    Hott’s     “significant       criminal

record” might be grounds for an upward departure.                           See United

States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002).                            Moreover,

the district court informed the parties at sentencing that it

was considering a variance from the guidelines and gave them an

opportunity to comment, as required by Rule 32(i)(1)(C).                               In

addition, the Supreme Court has held that no notice is necessary

for a variance sentence.               United States v. Irizarry, 128 S. Ct.

2198 (2008).      We conclude that Hott received adequate notice and

an opportunity to comment before the court imposed his sentence,

and that no significant procedural error occurred.

            Hott next contends that the extent of the district

court’s deviation from the guideline range was unreasonable.                           In

imposing    sentence,        the       district    court     stated    that      it    had

considered all the factors set out in § 3553(a) and made the

following findings:



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       The defendant’s conviction in this case constitutes
       his sixth felony sentencing event as an adult. He is
       an armed career criminal, but was not advised of the
       penalties.   He is a scourge upon the community based
       upon his violent behavior.      His significant prior
       criminal record, which spans over 36 years, stems from
       his impulsiveness and apparent belief that laws and
       societal controls do not pertain to him.

       Unfortunately previous lengthy periods of imprisonment
       have not deterred the defendant from continuing in his
       criminal activity.    Therefore, it appears that the
       only means available to the Court to attempt to deter
       future criminal activity and protect society from this
       defendant is through an upward variant sentence of
       incarceration for a period of 108 months.

             Gall   requires      that,       when    the   sentence    deviates

significantly from the guideline range, the district court must

provide “significant justification” for the deviation.                        Gall,

128 S. Ct. at 597.        The court did so here and we conclude that

the sentence is reasonable.

           We therefore affirm the sentence.                  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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