                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2403
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                    Michael Ghost

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                   ____________

                              Submitted: May 18, 2018
                                Filed: July 16, 2018
                                   [Unpublished]
                                   ____________

Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
                           ____________

PER CURIAM.

       Michael Ghost appeals his above-Guidelines sentence. Ghost pleaded guilty
to one count of involuntary manslaughter after killing his uncle, who was riding in
the car Ghost crashed while driving drunk in Indian country. This was Ghost’s
second conviction for involuntary manslaughter; three years earlier, Ghost had caused
the death of another person while Ghost was driving drunk. Ghost’s Guidelines range
was 37 to 46 months. At sentencing, the district court1 departed upward to 72 months
based on aggravating circumstances “not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines.” USSG § 5K2.0(a)(1). The
district court found the departure was supported by Ghost’s prior involuntary
manslaughter conviction, which also involved a high blood alcohol content and had
occurred three years before the instant offense, as well as Ghost’s repeated failure to
undergo substance abuse treatment. In the alternative, the district court varied
upward to the same sentence of 72 months.

        Ghost appeals, arguing that the district court failed to give adequate notice of
its intent to depart upward as required by Federal Rule of Criminal Procedure 32(h),
and that the 72-month sentence is substantively unreasonable. We first determine
whether the district court committed significant procedural error; then, we assess the
sentence imposed for abuse of discretion. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc).

       Rule 32(h) requires the district court to give parties “reasonable notice that it
is contemplating . . . a departure” on a ground not identified in the presentence report
or by a party. See Fed. R. Civ. P. 32(h). The government concedes that the court did
not give notice of its intent to depart until the sentencing hearing. But when the
district court did inform the parties of its intent, Ghost’s attorney did not object, did
not ask for a continuance, and told the court “I am prepared to respond.” In any
event, the notice requirement in Rule 32(h) does not apply to variances. Irizarry v.
United States, 553 U.S. 708, 716 (2008). Here, the district court expressly stated that,
in the alternative to a departure, it would vary upward to the same sentence. The
court said: “I would reach exactly the same sentence if I varied upward under the
federal sentencing statute” based on the applicable sentencing factors. Moreover,


      1
       The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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“the record does not indicate that a statement announcing [the] possibility [of an
upward variance] would have changed the parties’ presentations in any material way.”
Irizarry, 553 U.S. at 715.

       As to substantive reasonableness, Ghost claims that the district court failed to
consider the victim’s misconduct. See Feemster, 572 F.3d at 461 (failure to consider
relevant factor is an abuse of discretion). We disagree with Ghost’s assessment of the
sentencing record. The district court acknowledged that Ghost’s victim had also been
drinking in the hours leading up to his death. He had even been driving the car until
Ghost got behind the wheel. But the district court decided to give greater weight to
the fact that Ghost was the one driving at the time of the crash. Having reviewed the
sentencing record, we conclude that the district court did not abuse its discretion.

      For these reasons, Ghost’s sentence is affirmed.
                      ______________________________




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