                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4210


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TIMOTHY ALEXANDER DEVINE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00010-D-1)


Submitted:    February 10, 2009             Decided:   March 9, 2009


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES, PC,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Banumathi Rangarajan,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy Alexander Devine pleaded guilty to possession

of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924

(2006),     and    was    sentenced        to     a     term       of     262     months      of

imprisonment.        Devine      argues     on    appeal       that      his    sentence      is

unreasonable because the district court’s departure above the

Sentencing        Guidelines      range         pursuant       to        U.S.        Sentencing

Guidelines       Manual    § 4A1.3        (2006)       was     unwarranted            and    the

two-offense-level departure was excessive.                     We affirm.

            In     considering       whether          an     upward          departure       was

appropriate, the court noted several items regarding Devine’s

criminal history and recidivism, including that he committed the

predicate    offense      while      on    probation         for     a       conviction      for

possession of a firearm by a convicted felon, he had seven prior

probation    violations       with    five       resulting      revocations,            he   was

convicted    of    nine   disciplinary          infractions          while      incarcerated

for conspiracy to commit armed robbery with a dangerous weapon,

and he is a known leader of the Bloods gang.                                   After hearing

argument of defense counsel, which included the observation that

Devine’s armed career criminal designation already subjected him

to   a   nearly    doubled       Guidelines       range,       and       the    Government’s

recommendation       to   sentence        within      the    Guidelines          range,      the

court     concluded       that     Devine’s           criminal          history       category

seriously    under-represented            the     seriousness           of     his    criminal

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history and the likelihood that he would commit other crimes and

particularly noted his young age.                   The court concluded that an

upward departure to level 32 was appropriate, resulting in a

Guidelines range of 210 to 262 months, and imposed a 262-month

sentence.        In    fashioning      the     sentence,      the    court     relied     on

Devine’s history, noting that he committed the predicate offense

while on probation from serving a state armed felon offense;

that he had seven felony convictions, including three violent

felonies    involving       firearms;        that    he    has    trafficked         illegal

drugs   from     his    house,   exposing           his    daughter      to    crime    and

violence    in    the   home;    that     he     had      opportunities       to   address

substance abuse issues, but failed to complete court ordered

substance      abuse    programs     on      two     occasions;      that      his    prior

lenient sentences and conduct while on probation did not promote

respect for the law; that he would not be deterred from crime

absent a lengthy sentence; and that there is an extremely high

likelihood of recidivism.

            We review a sentence for abuse of discretion.                               See

Gall v. United States, 128 S. Ct. 586, 597 (2007).                            First, this

court   must      “ensure     that     the       district        court   committed       no

significant procedural error,” including improperly calculating

the Guidelines range, not considering the 18 U.S.C. § 3553(a)

(2006) factors, relying on clearly erroneous facts, or giving an

inadequate       explanation     for      the      sentence.        United     States    v.

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Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct.

at 597), cert. denied, 128 S. Ct. 2525 (2008).                       The court then

considers     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.

             Devine argues that the upward departure resulted in

his being punished excessively because his criminal history had

already established his criminal history score and his prior

convictions for a crime of violence enhanced his offense level.

He also contends that the court should not have relied on the

same factors to depart upward and then place his sentence at the

high end of the resulting Guidelines range.                      No error occurred

in this regard, however.

             A district court may depart upward from an applicable

Guidelines    range    if    “reliable    information         indicates     that   the

defendant’s         criminal        history            category       substantially

under-represents      the    seriousness        of    the    defendant’s     criminal

history or the likelihood that the defendant will commit other

crimes . . . .”        USSG § 4A1.3(a).              The district court decided

that Devine’s history of committing seven felonies by the age of

twenty-six and his several probation violations established a

high   likelihood     that   he   would       commit    other     crimes    without   a

lengthy sentence.         The court also considered Devine’s sale of

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drugs from his home and that previous, more lenient sentences

had not deterred him from criminal conduct.

              We conclude that the court’s decision to depart under

§ 4A1.3 and its two-offense-level departure from 30 to 32 was

factually      supported     and    that       the     resulting     sentence      was

reasonable.         Moreover,      the    court      adequately      explained     its

reasons for the departure.

              We   therefore    affirm        the    sentence    imposed     by    the

district    court.     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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