US v. Johnny Fancher, No. 09-5177 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5177 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY RAY FANCHER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:05-cr-00013-REM-JSK-1) Submitted: June 17, 2010 Decided: July 15, 2010 Before TRAXLER, Chief Judge, KING, Circuit Judge, and Benson E. LEGG, United States District Judge for the District of Maryland, sitting by designation. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Betsy C. Jividen, Acting United States Attorney, Sherry L. Muncy, David Perri, Assistant United States Attorneys, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case is before the court after a second remand for resentencing. Fancher s provide In sentence advance variance, our based previous on the notice United that States v. decisions, district it was Fancher, we court s failure considering 513 F.3d vacated 424 an to upward (4th Cir. 2008), and the district court s failure to afford Fancher the opportunity sentence. to address the court prior to the imposition of United States v. Fancher, 328 F. App x 268 (4th Cir. 2009) (No. 08-5187). On remand, the district court sentenced Fancher to 360 months of imprisonment, five years of supervised release, a $100 special assessment, and a $5000 fine. Fancher timely appealed. On appeal, Fancher sentence is unreasonable. argues that the upward variance This court reviews Fancher s sentence under a deferential abuse-of-discretion standard, which first considers whether the sentence is procedurally reasonable. v. United States, 552 U.S. 38, 41, 51 (2007). sentence, the district court must make Gall When rendering a an individualized assessment based on the facts presented, applying the relevant § 3553(a) factors before it. to the specific circumstances of the United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). court must case also state in open 2 court the particular The reasons supporting its satisfy this arguments and chosen court has a sentence that it reasoned has set forth considered basis legal decisionmaking authority. omitted). and for enough the exercising to parties [its] own Id. (internal quotation marks If a sentence is found procedurally reasonable, the court then considers substantive reasonableness. Gall, 552 U.S. at examines 51. totality In conducting of the this review, circumstances, the court including variance from the Guidelines range. the Id. extent of the any If the district court decides to impose a sentence outside the Guidelines range, it must ensure that its justification supports the degree of the United States v. Evans, 526 F.3d 155, 161 (4th Cir. variance. 2008) (citation and internal quotation marks omitted). Fancher discretion and argues failed to that the justify district the court extent of abused the its upward variance and thus imposed a sentence greater than necessary. Our review of the sentencing transcript leads us to conclude that the district court adequately explained its sentence to reflect that it considered the relevant § 3553(a) factors and to provide a sufficiently individualized sentence, as required by Carter. explanation for its We also conclude that the extent of the variance was supported by the facts of the case. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately 3 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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