                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4564


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEFFREY L. KING,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.     Irene C. Berger,
District Judge. (1:11-cr-00271-1)


Submitted:   November 19, 2012            Decided:   November 29, 2012


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Debra Kilgore, BURTON KILGORE & LAZENBY, PLLC, Princeton, West
Virginia, for Appellant.    R. Booth Goodwin II, United States
Attorney, John L. File, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jeffrey L. King appeals his forty-eight-month sentence

for distribution of hydromorphone.                   The sole argument that King

asserts    on     appeal      is     that    the     sentence         he    received       is

substantively      unreasonable        because       the       district     court    relied

upon his criminal history to impose an upward variance from the

advisory Guidelines range, despite the fact that his criminal

history was already factored into the Guidelines calculations.

After thoroughly examining the record and the contentions of the

parties, we affirm.

            We review a sentence for reasonableness, applying an

abuse of discretion standard.                United States v. Susi, 674 F.3d

278, 282 (4th Cir. 2012).              Whether a sentence is substantively

unreasonable      is   considered      “in       light    of    the   totality      of    the

circumstances.”        United States v. Worley, 685 F.3d 404, 409 (4th

Cir. 2012).       In reviewing whether a district court’s decision to

vary    from    the    applicable      Guidelines          range      is    substantively

reasonable, we “‘may consider the extent of the deviation [from

the applicable Guidelines range], but must give due deference to

the    district    court’s     decision       that       the    [18   U.S.C.    § 3553(a)

(2006)]    factors,      on    a     whole,       justify       the    extent       of    the

variance.’”       United States v. Diosdado-Star, 630 F.3d 359, 366

(4th   Cir.)    (quoting      Gall    v.    United       States,      552   U.S.    38,    51

(2007)), cert. denied, 131 S. Ct. 2946 (2011).

                                             2
               The    degree     of    the       variance       impacts       the    quantum    of

justification necessary to support the sentence imposed, with a

significant      variance        requiring             more    substantial      justification

than a minor variance.                 Id.        Nevertheless, “[t]hat a variance

sentence       deviates    significantly                from    the    advisory       Guidelines

range . . . does not alone render it presumptively unreasonable.

Indeed, a sentence that deviates from the Guidelines is reviewed

under    the    same    deferential          abuse-of-discretion               standard    as    a

sentence       imposed     within           the        applicable       guidelines      range.”

United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.)

(internal quotation marks omitted), cert. denied, No 11A1054,

12-5002, 2012 WL 2805025 (U.S. 2012).                          As a result, “‘[t]he fact

that the appellate court might reasonably have concluded that a

different sentence was appropriate is insufficient to justify

reversal of the district court.’”                             Diosdado-Star, 630 F.3d at

366 (quoting Gall, 552 U.S. at 51).

               King    contends       that        a    district       court    considering      an

upward    variance        on    the        basis       of     the   § 3553(a)       factors     is

precluded      from    considering           a    defendant’s         criminal       history    by

virtue of       the    fact     that       the    defendant’s          criminal      history    is

separately       factored       into        the        calculations       of    the     advisory

Guidelines range.              But King is mistaken.                    To the extent that

King takes umbrage with the district court’s double counting of

his   criminal        history,        it    is        clear    that    double       counting    is

                                                   3
presumptively        authorized       unless        expressly     prohibited.         United

States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).                                     King

points    to    nothing        in    the    pertinent          statutes    or    Guidelines

prohibiting the district court’s course of action.                              Indeed, the

plain language of § 3553(a) directs a result contrary to that

urged    by    King,      as   it    provides       that   a    sentencing      court     must

separately consider both “the history and characteristics of the

defendant” as well as the advisory range established under the

Guidelines.          See 18 U.S.C. § 3553(a)(1), (4).                       By its plain

terms, therefore, § 3553(a) contemplates an upward variance on

the basis of facts that also affect the establishment of the

advisory Guidelines range.

              Nor do we perceive any other reason to conclude that,

in   light     of   the     totality       of   the   circumstances,        the     district

court’s chosen sentence was not rooted in reason.                               See United

States v. Evans, 526 F.3d 155, 166 (4th Cir. 2008).                                Under the

deference      due     to      the   district        court’s      conclusion       that   the

§ 3553(a) factors justify the extent of the variance that it

chose to apply to King, we can only conclude that King’s forty-

eight-month sentence is substantively reasonable.                               See id. at

163-66.

              Because       King     has   advanced        no   other     reason    why   his

sentence is either procedurally or substantively defective, we

affirm the judgment of the district court.                              We dispense with

                                                4
oral   argument   because     the    facts   and   legal    contentions    are

adequately   presented   in    the    material     before   this   court   and

argument will not aid the decisional process.

                                                                    AFFIRMED




                                       5
