                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4207


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEO ANTONIO SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:08-cr-00101-1)


Submitted:   May 13, 2010                     Decided:   June 7, 2010


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jacqueline A. Hallinan, HALLINAN LAW OFFICES, PLLC, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Samuel D. Marsh, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Leo Antonio Smith pled guilty without a plea agreement

to distributing cocaine base (crack), in violation of 18 U.S.C.

§ 841(a)(1) (2006).             The district court imposed a thirty-four-

month     sentence,        an      upward       variance      from     the     sentencing

guidelines range of ten to sixteen months.                            On appeal, Smith

challenges         the   sentence,        claiming     that     the    district       court

imposed    a       substantively       unreasonable        sentence      and   that     the

district    court        should    have    used    a   beyond   a     reasonable      doubt

standard    to      justify       an   upward     variance.      He     also   questions

whether the district court erred by failing to append a written

statement of reasons to its written judgment.                        We affirm.

               A   sentence       is   reviewed    for     reasonableness       under    an

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

38, 51 (2007).           This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id.;

see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).     After determining whether the district court properly

calculated the defendant’s advisory guideline range, this court

must decide whether the district court considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed the arguments presented by

the parties, and sufficiently explained the selected sentence.

Id. at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009) (holding that, while the “individualized assessment

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

rationale       tailored          to   the    particular           case     .    .   .   and   [be]

adequate      to         permit    meaningful          appellate      review”).           Properly

preserved claims of procedural error are subject to harmless

error review.             Lynn, 592 F.3d at 576.                  If the sentence is free

of significant procedural error, the appellate court reviews the

substantive reasonableness of the sentence.                               Id. at 575; United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

              In this case, we conclude that the district court did

not err in varying upward to a sentence of thirty-four months.

The court considered testimony from eleven witnesses and based

its    decision           on      Smith’s    extensive            pending       state     criminal

charges, propensity for violence toward women, bond violations,

drug   use,      and       gunplay.         The    court      analyzed         Smith’s    behavior

within the framework of the § 3553(a) factors and determined

that the above sentence was necessary to promote respect for the

law, protect the public, and deter Smith’s criminal conduct, as

well as the criminal conduct of others.

              We         further    find     that      the       district       court    correctly

relied     on        a     preponderance          of    the       evidence       standard      when

considering          the    facts      underlying        its      decision       for     an   upward

variance.        See United States v. Morris, 429 F.3d 65 (4th Cir.

2005).       In the context of factual proof at sentencing, this

court relies on a preponderance of the evidence standard.

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            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




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