UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4908

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ANTONIO CAMERON, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:07-cr-00331-BO-1) 

Submitted: July 7, 2009 Decided: August 12, 2009 

Before MICHAEL, MOTZ, AND SHEDD, Circuit Judges. 

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion. 

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown, 

North Carolina, for Appellant. George E.B. Holding, United 

States Attorney, Ann M. Hayes, Jennifer P. May-Parker, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Antonio Cameron timely appeals from the 144-month 

sentence imposed after his guilty plea pursuant to a written 

plea agreement, to one count of possession of fifteen or more 

counterfeit and unauthorized access devices, in violation of 18 

U.S.C. § 1029(a)(3) (2006) (Count 1), and one count of 

aggravated identity theft, in violation of 18 U.S.C. § 1028A 

(2006) (Count 2). On appeal, Cameron argues that: (1) he was 

prejudiced by the district court’s failure to give notice of its 

intent to sentence him above the advisory Guidelines range; 

(2) his sentence is unreasonable; and (3) his case should be 

reassigned to another district court judge on remand. We affirm 

Cameron’s conviction, but vacate his sentence and remand for 

resentencing. 

I. 

 Cameron first asserts that the district court erred by 

failing to give him pre-hearing notice, pursuant to Federal Rule 

of Criminal Procedure 32(h), that it was considering an upward 

variance. Rule 32(h) requires the sentencing court to give the 

parties “reasonable notice” that it is considering a departure 

from the applicable Guidelines range “on a ground not identified 

for departure either in the presentence report or in a party’s 

prehearing submission.” Fed. R. Crim. P. 32(h). Cameron relies 

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our decision in United States v. Fancher, 513 F.3d 424, 430 (4th 

Cir. 2008) for the proposition that Rule 32(h) applies to 

variances. However, after Fancher, the Supreme Court considered 

the same issue, concluding that Rule 32(h) does not apply to 

variances. Irizarry v. United States, 128 S. Ct. 2198, 2202 

(2008). Accordingly, the district court did not err by failing 

to give Cameron notice that it was considering an upward 

variance. 

 Cameron also asserts that the lack of notice violated his 

right to due process. However, the Irizarry Court unambiguously 

concluded that “[t]he due process concerns that motivated the 

Court to require notice in a world of mandatory Guidelines no 

longer provide a basis” to extend Rule 32(h) to variance 

sentences, since the Guidelines are now advisory. Id. Thus, 

Cameron’s due process argument fails. 

II. 

 Most of Cameron’s remaining arguments question the 

reasonableness of his sentence. Consistent with United 

States v. Booker, 543 U.S. 220 (2005), the district court is 

required to follow a multi-step process at sentencing. First, 

it must calculate the proper sentencing range prescribed by the 

Guidelines. Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 

586, 596 (2007); see also United States v. Abu Ali, 528 F.3d 

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210, 260 (4th Cir. 2008). It must then consider that range in 

light of the parties’ arguments regarding the appropriate 

sentence and the factors set out in 18 U.S.C. § 3553(a) (2006), 

before imposing its sentence. Gall, 128 S. Ct. at 596; see also

Abu Ali, 528 F.3d at 260. If the district court determines that 

a sentence outside the Guidelines is appropriate, the court 

“should first look to whether a departure is appropriate based 

on the Guidelines Manual or relevant case law.” United States 

v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). If the district 

court determines that a departure is inappropriate, it may 

impose a variance sentence. Id. We review the district court’s 

sentence for abuse of discretion. Gall, 128 S. Ct. at 591. 

 When reviewing the district court’s sentence, we must 

first ensure the district court did not commit any “significant 

procedural error,” such as failing to consider the 18 U.S.C. 

§ 3553(a) factors or “failing to adequately explain the chosen 

sentence – including an explanation for any deviation from the 

Guidelines range.” Id. at 597. The district court is not 

required to “robotically tick through § 3553(a)’s every 

subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th 

Cir. 2006). However, the district court must “place on the 

record an individualized assessment based on the particular 

facts of the case before it. This individualized assessment 

need not be elaborate or lengthy, but it must provide a 

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rationale tailored to the particular case at hand and adequate 

to permit meaningful appellate review.” United States v. 

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation 

marks, footnote, and citations omitted). Further, in imposing a 

variance sentence, the district court “must consider the extent 

of the deviation and ensure that the justification is 

significantly compelling to support the degree of the variance. 

. . . [I]t [is] uncontroversial that a major departure should be 

supported by a more significant justification than a minor one.” 

Gall, 128 S. Ct. at 597. 

 When imposing Cameron’s sentence, the district court 

failed to provide a sufficient, individualized assessment of the 

§ 3553(a) factors as required by Carter. Given the extent of 

the upward variance, we find that the district court’s brief 

explanation does not adequately explain the reasons for the 

variance. See Carter, 564 F.3d at 328-29. Accordingly, we 

conclude that the district court committed procedural error and 

thus abused its discretion when imposing sentence.* We thus 

vacate Cameron’s sentence and remand for resentencing. 

 *

 Because we find that Cameron’s sentence is procedurally 

unreasonable, we need not consider whether his sentence is 

substantively unreasonable. See Gall, 552 U.S. at __, 128 S. 

Ct. at 597. 

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III. 

 Cameron requests that his case be assigned to a 

different judge on remand. The propriety of reassigning a case 

depends on: 

(1) whether the original judge would reasonably be 

 expected upon remand to have substantial 

 difficulty in putting out of his or her mind 

 previously expressed views or findings determined 

 to be erroneous or based on evidence that must be 

 rejected, 

(2) whether reassignment is advisable to preserve the 

 appearance of justice, and 

(3) whether reassignment would entail waste and 

 duplication out of proportion to any gain in 

 preserving the appearance of fairness. 

United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991) 

(internal citation omitted), superseded on other grounds by 

statute, United States v. Pridigen, 64 F.3d 147, 150 n.3 (4th 

Cir. 1995). Counsel has conceded that he is not sure Cameron’s 

request meets the requirements of Guglielmi. Having considered 

the Guglielmi factors, we find that it is unnecessary to 

reassign this case to a different judge. 

 For the foregoing reasons, we affirm Cameron’s 

convictions, but vacate his sentence and remand for 

resentencing. We dispense with oral argument because the facts 

and legal conclusions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

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AFFIRMED IN PART, 

VACATED IN PART, AND REMANDED