                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4537


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RINALDY TURCIOS-FLORES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00010-REP-1)


Submitted:   February 4, 2010             Decided:   March 4, 2010


Before MICHAEL, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Patrick L. Bryant, Research
and Writing Attorney, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, S. David Schiller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rinaldy Turcios-Flores pled guilty, pursuant to a plea

agreement, to one count of illegal reentry after being convicted

of an aggravated felony, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2006).         The district court departed upward pursuant to

U.S.      Sentencing   Guidelines        Manual    (“USSG”)    §    4A1.3(a),     p.s.

(2007), imposed an upward variance, and sentenced Turcios-Flores

to sixty months in prison.                On appeal, Turcios-Flores argues

that the district court erred in imposing his sentence.                        Finding

no error, we affirm.

              When determining a sentence, the district court must

calculate the appropriate advisory guidelines range and consider

it   in    conjunction     with    the    factors    set    forth    in   18   U.S.C.

§ 3553(a)     (2006).       Gall    v.    United    States,    552    U.S.     38,   51

(2007).      Appellate review of a sentence, “whether inside, just

outside, or significantly outside the [g]uidelines range,” is

for abuse of discretion.             Id. at 41.           If the district court

determines      that   a   sentence      outside    the     guidelines    range      is

appropriate, the reviewing court “should first look to whether a

departure is appropriate based on the [g]uidelines Manual or

relevant case law.”          United States v. Moreland, 437 F.3d 424,

432 (4th Cir. 2006).

              Turcios-Flores        challenges        the     district         court’s

decision to impose an upward departure.                     A district court may

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depart upward from the guidelines range under USSG § 4A1.3(a),

p.s.,      when        “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), p.s.;

see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)

(noting that under-representative criminal history category is

an encouraged basis for departure), cert. denied, ___U.S.___, 78

U.S.L.W. 3392 (U.S. Jan. 11, 2010) (No. 09-6521).

             To        determine      whether          a     departure         sentence          is

appropriate       in    such    circumstances,             the     guidelines      explicitly

state that a court may consider prior sentences not used in the

criminal history calculation, prior sentences of “substantially

more    than      one    year”       for    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.       See USSG § 4A1.3(a)(2), p.s.

             Here,       the     record      supports             the    district      court’s

conclusion that Turcios-Flores’ criminal history category failed

to adequately reflect the seriousness of his criminal history

and    the   likelihood         of    his    recidivism.                Turcios-Flores       had

multiple unscored convictions not included in calculating his

criminal       history        category,      a     lengthy          history     of     lenient

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sentences followed by recidivism, and a number of probation and

supervised release violations.                 Thus, the district court did not

err in imposing the departure sentence.

                Turcios-Flores       also      challenges        the    district         court’s

decision        to   impose    an    upward     variance.          When      reviewing      the

substantive          reasonableness       of   an    upward      variance,          the    court

“must give due deference to the district court’s decision that

the § 3553(a) [(2006)] factors, on a whole, justify the extent

of the variance.” Gall, 552 U.S. at 51.                       “Even if we would have

reached     a    different     sentencing          result   on    our       own,    this    fact

alone   is      ‘insufficient        to    justify       reversal       of    the       district

court.’”        United States v. Pauley, 511 F.3d 468, 474 (4th Cir.

2007)      (quoting        Gall,    552    U.S.     at    51).         Under       18     U.S.C.

§ 3553(a), the district court should consider the nature and

circumstances of the offense and the history and characteristics

of   the    defendant.        The    court     should       impose      a    sentence       that

reflects the seriousness of the offense, and the need to promote

respect     for      the    law,    to    provide    just     punishment,           to    afford

adequate deterrence, to protect the public from further crimes,

and to provide the defendant with adequate rehabilitation or

medical treatment.

                We find that, in imposing a variance sentence, the

district court provided an adequate individualized assessment of

the § 3553 sentencing factors in relation to Turcios-Flores and

                                               4
his   criminal    conduct.           The    court       took     into     consideration

Turcios-Flores’       prior    criminal         conduct,      which     demonstrated     a

lack of respect for the law, as well as the fact he had received

some punishment for conduct related to the current conviction.

Accordingly,     we    find    the    district      court        did    not    abuse    its

discretion.

            Finally,       Turcios-Flores               argues         that     it     was

unreasonable     for   the     district         court    to     run    his    sixty-month

sentence consecutive to his other terms of imprisonment.                                 We

find no error in this decision.                    See USSG § 5G1.3(c) & cmt.

n.3(C).

            We conclude that the district court did not abuse its

discretion in imposing the sixty-month sentence. 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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