UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4045

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD KIRK MAYNOR,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (5:14-cr-00121-BO-1)

Submitted: September 11, 2015 Decided: October 16, 2015

Before MOTZ, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. Thomas G. Walker, United States Attorney, Jennifer 

P. May-Parker, Phillip A. Rubin, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Richard Kirk Maynor appeals his 72-month upward variant 

prison sentence, which was imposed after he pled guilty, 

pursuant to a plea agreement, to one count of possession of a 

stolen firearm and ammunition, in violation of 18 U.S.C. 

§§ 922(j), 924(a)(2) (2012). Maynor’s sole argument is that the 

district court procedurally erred when it imposed an upward 

variant sentence without addressing his non-frivolous arguments 

in favor of a within-Guidelines sentence. Finding no error, we 

affirm.

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

court, we review for abuse of discretion” and will reverse 

unless we can “conclude that the error was harmless.” United 

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). Thus, where, 

as here, “an aggrieved party sufficiently alerts the district 

court of its responsibility to render an individualized 

explanation” by drawing arguments from 18 U.S.C. § 3553 (2012) 

“for a sentence different than the one ultimately imposed,” the 

party sufficiently “preserves its claim.” Id. at 578. 

We conclude that the district court did not abuse its

discretion when it imposed Maynor’s upward variant sentence. A 

district court “has flexibility in fashioning a sentence outside 

of the Guidelines range,” and need only “set forth enough to 
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satisfy the appellate court that it has considered the parties’ 

arguments and has a reasoned basis” for its decision. United 

States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) 

(brackets omitted). Thus, “a district court’s explanation 

should provide some indication (1) that the court considered the 

§ 3553(a) factors with respect to the particular defendant; and 

(2) that it has also considered the potentially meritorious 

arguments raised by both parties about sentencing[.]” United 

States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) 

(internal citations omitted). 

“[I]n determining whether there has been an adequate 

explanation, we do not evaluate a court’s sentencing statements 

in a vacuum[;]” rather, “[t]he context surrounding a district 

court’s explanation may imbue it with enough content for [the 

appellate court] to evaluate both whether the court considered 

the § 3553(a) factors and whether it did so properly.” Id. at 

381. The context of a defendant’s sentencing can also make 

clear that the district court considered defense counsel’s 

arguments for a different sentence but found them insufficient. 

See Rita v. United States, 551 U.S. 338, 359 (2007). 

At sentencing, the government argued for an upward 

departure, emphasizing Maynor’s “many unscored convictions.” 

J.A. 32. Because Maynor’s criminal history category was already 

category VI, the government asked the district court to depart 
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from an offense level of 17 to 21 to reflect Maynor’s unscored 

convictions, which the government catalogued. J.A. 34-35. 

Maynor responded with non-frivolous arguments for a withinGuidelines sentence, addressing each of those unscored 

convictions and arguing against using them to depart. J.A. 36-

37. The court responded: “You don’t have to go through all of 

that. You can do it if you want but that’s not going to 

influence me at all. I’m going to vary. I’m not going to 

upwardly depart . . .” J.A. 37.

Reviewing this statement in context, we conclude that the 

district court found it unnecessary for Maynor to rebut the 

government on each unscored conviction because the court had 

decided to reject the government’s departure motion. We further

conclude that the district court was engaged during Maynor’s 

sentencing hearing and said enough to satisfy us that it 

considered the parties’ arguments and had a reasoned basis for 

imposing the upward variant sentence.

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED