UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4923

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARTIN KALCHSTEIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:09-cr-00057-FDW-1)

Submitted: June 28, 2010 Decided: July 21, 2010

Before DUNCAN, AGEE, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew Collin Joseph, Charlotte, North Carolina, for Appellant. 

Edward R. Ryan, United States Attorney, Charlotte, North 

Carolina; Lanny A. Breuer, Assistant Attorney General, Roanoke, 

Virginia; Ellen R. Meltzer, Patrick M. Donley, Peter B. 

Loewenberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, 

D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Martin Kalchstein pled guilty to failure to surrender 

for service of the sentence imposed in United States v.

Kalchstein, No. 3:06-cr-00151-FDW-6 (W.D.N.C. Nov. 7, 2008),*

We review a sentence, “whether inside, just outside, 

or significantly outside the [g]uidelines range,” under an 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 

38, 41 (2007). This review requires consideration of both the 

procedural and substantive reasonableness of a sentence. Id. at 

51. “Procedural reasonableness evaluates the method used to 

determine a defendant’s sentence.” United States v. MendozaMendoza, 597 F.3d 212, 216 (4th Cir. 2010). This court must 

assess whether the district court properly calculated the 

in 

violation of 18 U.S.C. § 3146(a)(2) (2006), and contempt of 

court, in violation of 18 U.S.C. § 401(3) (2006). The district 

court sentenced Kalchstein to seventy-two months of 

imprisonment, an upward variance of more than five times the top 

of the advisory sentencing guidelines range. On appeal, 

Kalchstein contends that his sentence is unreasonable and 

greater than necessary to serve the purposes of 18 U.S.C. 

§ 3553(a) (2006). Finding no reversible error, we affirm.

 * Kalchstein’s underlying convictions were for conspiracy to 

defraud the United States and two counts of wire fraud.
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advisory guidelines range, considered the factors set forth in 

§ 3553(a), analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 

2010) (“[A]n individualized explanation must accompany every

sentence.”); United States v. Carter, 564 F.3d 325, 330 (4th 

Cir. 2009).

If there is no procedural error, the appellate court 

reviews the substantive reasonableness of the sentence, 

“tak[ing] into account the totality of the circumstances, 

including the extent of any variance from the [g]uidelines 

range.” United States v. Morace, 594 F.3d 340, 346 (4th Cir. 

2010) (internal quotation marks and citation omitted). “Where, 

as here, the district court decides that a sentence outside the 

advisory range is appropriate, [the court] ‘must consider the 

extent of the deviation and ensure that the justification is 

sufficiently compelling to support the degree of the variance.’” 

Id. (quoting Gall, 552 U.S. at 50). “A major departure from the 

advisory range ‘should be supported by a more significant 

justification than a minor one.’” Id. (quoting Gall, 552 U.S. 

at 50). In reviewing a variance sentence, this court “may 

consider the extent of the deviation, but must give due 

deference to the district court’s decision that the § 3553(a) 
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factors, on a whole, justify the extent of the variance.” Gall, 

552 U.S. at 51.

With these standards in mind, we have reviewed 

Kalchstein’s sentence and find that it is procedurally and 

substantively reasonable. Kalchstein asserts that the district 

court committed procedural error in finding that he planned to 

flee well before he was required to report to serve his sentence 

and intentionally committed fraud in the process. Our review of 

the record leads us to conclude that a preponderance of the 

evidence supports the district court’s conclusions. See United 

States v. Dean, 604 F.3d 169, 173 (4th Cir. 2010) (“Sentencing 

judges may find facts relevant to determining a [g]uidelines 

range by a preponderance of the evidence . . . .”) (internal 

quotation marks and citation omitted).

Kalchstein also asserts that the above-guidelines 

sentence imposed by the district court was greater than 

necessary to serve the purposes of § 3553(a) and therefore 

substantively unreasonable. He contends that the district 

court’s consideration of his remorse during the original 

sentencing proceedings was irrelevant to the selection of the 

sentence imposed in this case. We find, however, that the 

district court properly considered the lenient sentence imposed 

for the underlying convictions, Kalchstein’s lack of remorse, 

and his repeated deceptive and manipulative conduct in making
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the premeditated decision to flee to avoid serving that 

sentence. See United States v. Douglas, 569 F.3d 523, 528 (5th 

Cir. 2009) (finding no error in “sentencing [defendant] to an 

above-range non-[g]uideline[s] sentence based on its assessment 

of the § 3553(a) factors, including its finding that the 

defendant lacked remorse for his crime”); United States v. 

Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (finding no abuse 

of discretion where court considered fact that defendant “had 

repeatedly betrayed the trust reflected in [prior] lenient 

sentences” when sentencing defendant for violating conditions of 

his probation). Thus, we find no abuse of discretion in the 

district court’s decision to impose a sentence significantly 

above the advisory guidelines range.

Accordingly, we affirm the district court’s judgment. 

We deny Kalchstein’s motion to file a pro se supplemental brief 

and 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