                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4027


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CORNELIUS KEITH SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00076-FL-1)


Submitted:   October 31, 2012             Decided:   December 11, 2012


Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Cornelius Keith Smith pled guilty to possession with

intent    to   distribute       cocaine       in     violation      of      21       U.S.C.

§ 841(a)(1) (2006) (Count One) and using and carrying a firearm

during and in relation to, and possession in furtherance of, a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)

(2006) (Count Three).          He was sentenced as a career offender,

U.S. Sentencing Guidelines Manual § 4B1.1 (2011), to a term of

267 months on Count One and a consecutive sixty months on Count

Three, a total sentence of 327 months.                   His sentence was vacated

on appeal in light of United States v. Simmons, 649 F.3d 237

(4th Cir. 2011), and Smith was resentenced in December 2011.                            He

no    longer   qualified      for    sentencing          as   a   career       offender;

however, the district court departed upward pursuant to USSG

§ 4A1.3, p.s., and imposed a sentence of 175 months on Count One

and   a   consecutive   sixty       months    on    Count     Three,     for     a    total

sentence of 235 months.         Smith appeals, arguing that the upward

departure resulted in an unreasonable sentence.                    We affirm.

            We review a sentence for reasonableness under an abuse

of discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), which requires consideration of both the procedural and

substantive    reasonableness        of   a    sentence.          Id.;     see       United

States    v.   Lynn,    592   F.3d     572,        575    (4th    Cir.    2010).         A

“deferential     abuse-of-discretion               standard       applies        to     any

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sentence, whether inside, just outside, or significantly outside

the Guidelines range.”           United States v. Rivera-Santana, 668

F.3d    95,   100-01   (4th    Cir.)    (internal    citation     and    quotation

marks omitted), cert. denied, ___ S. Ct. ___, 2012 WL 2805025

(U.S. Oct. 1, 2012); United States v. Diosdado-Star, 630 F.3d

359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).

              The district court “has flexibility in fashioning a

sentence outside of the Guidelines range,” and need only “set

forth    enough   to   satisfy    the    appellate       court   that    [it]   has

considered the parties’ arguments and has a reasoned basis” for

its decision.        Diosdado-Star, 630 F.3d at 364 (citing Rita v.

United States, 551 U.S. 338, 356 (2007)).

              A district court may depart upward from the 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)(1); see United States v. Whorley, 550

F.3d 326, 341 (4th Cir. 2008) (noting that an under-represented

criminal history category is an encouraged basis for departure).

To determine whether a departure sentence is appropriate in such

circumstances, the Guidelines state that a court may consider

prior sentences not used in the criminal history calculation,

prior    sentences     of    “substantially       more   than    one    year”   for

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independent crimes committed at different times, prior similar

misconduct      resolved    by    civil    or    administrative        adjudication,

charges pending at the time of the offense, or prior, similar

conduct     that     did    not        result     in     a    conviction.            USSG

§ 4A1.3(a)(2).

               Smith contends that the court erred in that it failed

to provide a specific reason for each offense level that it

rejected, failed to check any of the boxes in Part V of the

sealed    statement    of    reasons      to    explain       its   reasons    for    the

departure, and failed to consider the minor nature of many of

his prior offenses.         His arguments are without merit.                  We do not

“require a sentencing judge to move only one” offense level at a

time,    rejecting    “each      and    every    intervening        level.”      United

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (quotations

omitted).       However, the court is required to explain adequately

its decision to depart and to relate its reason for the extent

of the departure to the structure of the Guidelines.                             United

States    v.    Hernandez-Villanueva,           473    F.3d    118,   123   (4th     Cir.

2007).    The court did so at the sentencing hearing, its failure

to check the box for a § 4A1.3 departure on the statement of

reasons notwithstanding.           The court noted Smith’s record of “a

variety of petty crimes and misdemeanors,” but explained that

Smith’s     record    of    serious      offenses       and     the   likelihood      of



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recidivism justified a departure.       We conclude that Smith has

not shown significant procedural error by the district court.

           We therefore affirm the district court’s judgment.       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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