                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-4409


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

WILLIAM HAYWOOD HOUCK,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00127-D-2)


Submitted:   April 15, 2014                    Decided:    May 28, 2014


Before DUNCAN    and   DIAZ,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, THE LAW OFFICES OF DENZIL H. FORRESTER,
Charlotte,   North  Carolina, for  Appellant.   Jennifer  P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      William Haywood Houck pleaded guilty pursuant to a plea

agreement to conspiracy to distribute and possess with intent to

distribute      100     grams     or    more     of   heroin,     in    violation    of

21 U.S.C.      § 846.           The     district      court   calculated        Houck’s

Guidelines range as sixty to seventy-one months’ imprisonment.

It   then     applied    an     upward     departure     under     U.S.    Sentencing

Guidelines Manual (“U.S.S.G.”) § 4A1.3 and sentenced Houck to

ninety months’ imprisonment.                   On appeal, Houck’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal,

but questioning whether the district court erred in applying the

upward departure.         Houck was informed of his right to file a pro

se supplemental brief, but he has not done so.                         The government

declined to file a brief.              We affirm.



                                           I.

      This court’s review of a district court’s decision to apply

an   upward    departure        is     limited   to    ensuring    that    it    “acted

reasonably both with respect to its decision to impose such a

sentence and with respect to the extent of the divergence from

the sentencing range.”               United States v. McNeill, 598 F.3d 161,

166 (4th Cir. 2010) (internal quotation marks omitted).                             The

Sentencing Guidelines allow a district court to depart upwardly

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when     “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.”

U.S.S.G. § 4A1.3(a)(1).                 In determining whether a departure is

appropriate under the Guidelines, a court may consider, among

other things, prior sentences not used in the criminal history

calculation.        See U.S.S.G. § 4A1.3(a)(2).

                                                 A.

       On    appeal,       counsel      questions        whether    the    district        court

should      have    relied       on    Houck’s        unscored    state    convictions       to

upwardly depart, as there was no evidence that those convictions

were felonies under federal law.                       Because counsel did not raise

this objection before the district court, we review for plain

error.       See United States v. Lynn, 592 F.3d 572, 576-77 (4th

Cir. 2010).

       A district court may depart under U.S.S.G. § 4A1.3(a)(1)

based on prior convictions not used in the computation of a

defendant’s        criminal       history    category         irrespective       of    whether

those convictions were punishable by prison terms exceeding one

year.       See U.S.S.G. § 4A1.3(a)(2)(A).

       In deciding to upwardly depart, the district court below

relied      on    information         in   the    PSR    indicating       that     Houck    had

sustained six unscored state convictions that were not included

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in his criminal history calculation.                  The court also noted that

Houck had a lengthy criminal record and a history of recidivism.

As Houck made no affirmative showing that the information in the

PSR was incorrect, the court was free to adopt and rely on it to

impose the upward departure.              See United States v. Randall, 171

F.3d 195, 210-11 (4th Cir. 1999); United States v. Love, 134

F.3d 595, 606 (4th Cir. 1998).

                                           B.

      Counsel        also   suggests     that   Houck    should      not    have     been

sentenced based solely on the information in the PSR.                             Counsel

emphasizes       Houck’s    robust     employment      history,      the    eight-year

break in Houck’s criminal record, and Houck’s statements that he

had no plans to return to drug trafficking after his release

from prison.

      To the extent counsel emphasizes these issues as part of

his contention that the district court erred in relying on the

information in the PSR, we reject this argument as meritless.

To   the    extent     counsel    is   suggesting     that     the   district       court

erred      in   applying    the   upward    departure     in     light      of    Houck’s

personal        circumstances,      we    likewise      reject       this    argument.

Before imposing the upward departure, the court considered the

break in criminal conduct and Houck’s employment history.                             But

it was also entitled to consider the fact that Houck repeatedly

returned        to   criminal     conduct,      and     that    he    had        numerous

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convictions    for    conduct     similar   to     the   instant   conspiracy

offense.      This   history    provided    a    reasonable    basis   for   the

district court to upwardly depart.



                                     II.

     In accordance with Anders, we have reviewed the remainder

of the record in this case and have found no meritorious issues

for appeal.     We therefore affirm the district court’s judgment.

We also deny without prejudice counsel’s motion to withdraw.

     This court requires that counsel inform Houck, in writing,

of the right to petition the Supreme Court of the United States

for further review.      If Houck requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.      Counsel’s motion must state that a copy thereof

was served on Houck.

     We dispense with oral argument because the facts and legal

contentions    are   adequately    presented      in   the   materials   before

this court and argument would not aid the decisional process.



                                                                       AFFIRMED




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