                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4045


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD KIRK MAYNOR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:14-cr-00121-BO-1)


Submitted:   September 11, 2015           Decided:   October 16, 2015


Before MOTZ, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Richard         Kirk   Maynor    appeals         his    72-month         upward      variant

prison     sentence,        which     was    imposed         after       he    pled       guilty,

pursuant to a plea agreement, to one count of possession of a

stolen     firearm      and       ammunition,       in      violation         of    18     U.S.C.

§§ 922(j), 924(a)(2) (2012).                Maynor’s sole argument is that the

district       court   procedurally         erred      when       it   imposed       an    upward

variant sentence without addressing his non-frivolous arguments

in favor of a within-Guidelines sentence.                           Finding no error, we

affirm.

     “[I]f       a   party    repeats       on   appeal       a     claim     of     procedural

sentencing error . . . which it has made before the district

court,    we    review      for    abuse    of   discretion”            and    will       reverse

unless we can “conclude that the error was harmless.”                                      United

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).                                 Thus, where,

as here, “an aggrieved party sufficiently alerts the district

court     of     its    responsibility           to      render        an     individualized

explanation” by drawing arguments from 18 U.S.C. § 3553 (2012)

“for a sentence different than the one ultimately imposed,” the

party sufficiently “preserves its claim.”                         Id. at 578.

     We    conclude         that    the   district          court      did    not    abuse    its

discretion when it imposed Maynor’s upward variant sentence.                                    A

district court “has flexibility in fashioning a sentence outside

of the Guidelines range,” and need only “set forth enough to

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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.    2011)

(brackets          omitted).         Thus,    “a   district       court’s      explanation

should provide some indication (1) that the court considered the

§ 3553(a) factors with respect to the particular defendant; and

(2)    that      it    has    also   considered       the   potentially        meritorious

arguments raised by both parties about sentencing[.]”                                 United

States      v.     Montes-Pineda,       445    F.3d    375,    380    (4th     Cir.    2006)

(internal citations omitted).

       “[I]n        determining       whether      there    has      been    an     adequate

explanation, we do not evaluate a court’s sentencing statements

in a vacuum[;]” rather, “[t]he context surrounding a district

court’s explanation may imbue it with enough content for [the

appellate court] to evaluate both whether the court considered

the § 3553(a) factors and whether it did so properly.”                                Id. at

381.        The context of a defendant’s sentencing can also make

clear       that      the    district   court      considered        defense      counsel’s

arguments for a different sentence but found them insufficient.

See Rita v. United States, 551 U.S. 338, 359 (2007).

       At     sentencing,        the     government         argued     for     an     upward

departure,          emphasizing       Maynor’s     “many      unscored      convictions.”

J.A. 32.         Because Maynor’s criminal history category was already

category VI, the government asked the district court to depart

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from an offense level of 17 to 21 to reflect Maynor’s unscored

convictions,       which       the     government           catalogued.           J.A.       34-35.

Maynor    responded       with       non-frivolous           arguments       for       a    within-

Guidelines       sentence,           addressing         each         of    those           unscored

convictions and arguing against using them to depart.                                      J.A. 36-

37.     The court responded: “You don’t have to go through all of

that.      You    can    do     it    if   you       want    but    that’s    not          going    to

influence me at all.                 I’m going to vary.                   I’m not going to

upwardly depart . . .”               J.A. 37.

      Reviewing this statement in context, we conclude that the

district    court       found    it    unnecessary           for    Maynor    to       rebut       the

government on each unscored conviction because the court had

decided to reject the government’s departure motion.                                We further

conclude that the district court was engaged during Maynor’s

sentencing       hearing       and     said      enough       to    satisfy       us       that     it

considered the parties’ arguments and had a reasoned basis for

imposing the upward variant 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

this court and argument would not aid the decisional process.



                                                                                           AFFIRMED



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