UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4375

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

RAY ALFRED HOTT, II, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:07-cr-00063-JPB-DJJ-1) 

Submitted: January 27, 2009 Decided: April 2, 2009 

Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

S. Andrew Arnold, ARNOLD, CESARE & BAILEY, PLLC, Shepherdstown, 

West Virginia, for Appellant. Sharon L. Potter, United States 

Attorney, Paul T. Camilletti, Assistant United States Attorney, 

Martinsburg, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 Ray Alfred Hott, II, pled guilty to possession of a 

firearm after being convicted of a felony, in violation of 

18 U.S.C. § 922(g)(1) (2006), and was sentenced to 108 months 

imprisonment. Hott appeals his sentence, contending that the 

district court erred in departing or varying above the advisory 

guideline range, which the court determined to be 33-41 months, 

without giving him adequate notice, and that the extent of the 

departure rendered the sentence unreasonable. We affirm. 

 A sentence is reviewed for abuse of discretion. Gall 

v. United States, 128 S. Ct. 586, 591 (2007). First, we must 

ensure that the district court committed no “significant 

procedural error,” including improperly calculating the 

guidelines range, not considering the § 3553(a) factors, relying 

on clearly erroneous facts, or giving an inadequate explanation 

for the sentence. United States v. Evans, 526 F.3d 155, 161 

(4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 

129 S. Ct. 476 (2008). We must then consider the substantive 

reasonableness of the sentence imposed, “tak[ing] into account 

the totality of the circumstances, including the extent of any 

variance from the Guidelines range.” Gall, 128 S. Ct. at 597. 

If the sentence is outside the guideline range, we “must give 

due deference to the district court’s decision that the 

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§ 3553(a) factors, on a whole, justify the extent of the 

variance.” Id. 

 Hott argues that the district court erred in departing 

or varying upward without giving him adequate notice of its 

intention, as is required for a departure. See Fed. R. Crim. P. 

32(h). However, Hott had sufficient notice of a possible 

departure from the presentence report, where the probation 

officer advised the court that Hott’s “significant criminal 

record” might be grounds for an upward departure. See United 

States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002). Moreover, 

the district court informed the parties at sentencing that it 

was considering a variance from the guidelines and gave them an 

opportunity to comment, as required by Rule 32(i)(1)(C). In 

addition, the Supreme Court has held that no notice is necessary 

for a variance sentence. United States v. Irizarry, 128 S. Ct. 

2198 (2008). We conclude that Hott received adequate notice and 

an opportunity to comment before the court imposed his sentence, 

and that no significant procedural error occurred. 

 Hott next contends that the extent of the district 

court’s deviation from the guideline range was unreasonable. In 

imposing sentence, the district court stated that it had 

considered all the factors set out in § 3553(a) and made the 

following findings: 

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The defendant’s conviction in this case constitutes 

his sixth felony sentencing event as an adult. He is 

an armed career criminal, but was not advised of the 

penalties. He is a scourge upon the community based 

upon his violent behavior. His significant prior 

criminal record, which spans over 36 years, stems from 

his impulsiveness and apparent belief that laws and 

societal controls do not pertain to him. 

Unfortunately previous lengthy periods of imprisonment 

have not deterred the defendant from continuing in his 

criminal activity. Therefore, it appears that the 

only means available to the Court to attempt to deter 

future criminal activity and protect society from this 

defendant is through an upward variant sentence of 

incarceration for a period of 108 months. 

 Gall requires that, when the sentence deviates 

significantly from the guideline range, the district court must 

provide “significant justification” for the deviation. Gall, 

128 S. Ct. at 597. The court did so here and we conclude that 

the sentence is reasonable. 

 We therefore affirm the sentence. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED