UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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).
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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 
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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 fortyeight-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 
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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