                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4854


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TORRENCE RONZAY JONES, a/k/a Tee,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:07-cr-00029-D-1)


Submitted:    June 3, 2009                  Decided:   July 2, 2009


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Jude Darrow, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Torrence        Ronzay       Jones           appeals       his      conviction           on   a

guilty     plea      and     sentence       on        one        count        of     conspiracy            to

distribute      cocaine       and       marijuana,          in    violation          of     21    U.S.C.

§ 846     (2006)       (Count       One),      and         possession            with     intent           to

distribute      cocaine,        more      than        5    grams       of     cocaine       base,      and

marijuana, and aiding and abetting, in violation of 21 U.S.C.

§ 841(a)(1) (2006), 18 U.S.C. § 2 (2006) (Count Five).                                            At the

sentencing hearing, the district court determined that Jones’

advisory guidelines range was 92 to 115 months’ imprisonment.

The district court granted the Government’s motion for upward

departure,        pursuant         to     U.S.        Sentencing              Guidelines          Manual

("USSG")    §     4A1.3      (2007),      on     the        bases       that       Jones’    criminal

history     category         under-represented                   the     seriousness             of    his

criminal history and the likelihood that he would commit future

crimes,    and       the   Government’s           motion          for       downward       departure,

pursuant to USSG 5K1.1.                 The court departed upward two criminal

history    categories,         from      category           IV    to    VI,        resulting      in       an

imprisonment         range    of    120     to    150          months,        and    then    departed

downward,       in   consideration          of        Jones’       substantial            assistance.

Following    thorough         consideration               of     the    applicable          18    U.S.C.

§ 3553(a)       (2006)       factors,       the       arguments             of     counsel,       Jones’

statement,       the    information         in        the      pre-sentence           investigation



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report, and the applicable statutory and constitutional factors, 1

the   district      court   imposed     concurrent    132-month     terms    of

imprisonment and concurrent three-year and five-year terms of

supervised release.         Jones appeals from the district court’s

upward    departure, 2   claiming     that   the   departure   constituted    a

clear abuse of discretion. 3        We affirm.

            Jones    asserts   that    the    district   court    abused    its

discretion in sentencing him, claiming the court fashioned a

sentence to correct a Government charging error.                 Specifically,

he claims the Government’s failure to specify the time frame for

the conspiracy resulted in its inability to have Jones sentenced

as a career offender, and that the basis for the Government’s

motion for upward departure was to remedy its charging decision.

Jones asserts that a lesser sentence of 92 months would have

been sufficient to meet the desired goals of § 3553.                  Finally,
      1
       In addition to stating in open court the reasons for the
sentence imposed, the district court issued a written order
reiterating its sentencing rationale. Both the district court’s
statements at sentencing, and its written order, demonstrate
that it made particularized and individual findings relating to
Jones, which reasons supported its chosen sentence. See United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009); Rita v.
United States, 127 S. Ct. 2456, 2468 (2007).
      2
       The net upward departure, from the originally calculated
range of 92 to 115 months, was 17 months above the guidelines
range.
      3
       As Jones reserved the right to appeal from a sentence in
excess of the applicable advisory guidelines range, there is no
issue of waiver in this case.



                                       3
he contends that the district court’s use of criminal history

outside the presumed period of the conspiracy in determining his

advisory         guideline   range,      coupled    with   its     upward     departure

based       on    the   same     convictions,       resulted     in     inappropriate

“double-counting.” 4

                 We review departure sentences, “whether inside, just

outside, or significantly outside the Guidelines range” under a

“deferential         abuse-of-discretion          standard.”       Gall      v.    United

States, 128 S. Ct. 586, 591 (2007); United States v. Evans, 526

F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008).

An upward departure from the applicable guidelines sentencing

range is warranted when a defendant’s criminal history category

is     inadequate       to     reflect    either     the    seriousness           of   the

defendant’s criminal history or the likelihood of recidivism.

USSG       § 4A1.3(a)(1),      p.s.       A   district     court      “may    reject    a

sentence within the advisory Guidelines range because ‘the case

at hand falls outside the “heartland”’ to which the individual

Guidelines apply or because a sentence within the Guidelines

fails to reflect the other § 3553(a) factors or ‘because the


       4
       Jones concedes that the district court properly calculated
the guidelines range, considered the arguments of counsel, and
duly addressed the § 3553(a) sentencing factors.      He further
concedes that the district court had the authority to impose a
sentence outside the guidelines range, and that it articulated
reasons for its departure.



                                              4
case warrants a different sentence regardless.’”                           Evans, 526

F.3d at 161 (quoting Rita, 127 S. Ct. at 2465).                          The district

court is obligated to state in open court the particular reasons

supporting its chosen sentence, 18 U.S.C. § 3553(c) (2006), and

to   “make    an   individualized        assessment        based    on     the    facts

presented.”     Gall, 128 S. Ct. at 597.

             We find no error in Jones’ sentence.                        The district

court detailed its reasons for the two-level upward departure

and those reasons meet statutory and constitutional muster. 5                       The

district court’s conclusion that a criminal history category of

IV   was   inadequate    to    account     for    the     seriousness      of    Jones’

criminal history and the likelihood that he would commit future

crimes was appropriate under the circumstances of this case and

proper under the law.

             Moreover,    Jones’       arguments          that      the     § 3553(a)

sentencing     factors    could     have       been    “more     fully    and    fairly

addressed” by the district court because his drug quantities

were not overwhelming, and that a 92-month sentence would have

adequately    satisfied       the   § 3553(a)         factors,    merely    evince   a

disagreement with the district court’s conclusion, and fail to

      5
        The district court never mentioned the Government’s
charging decision as a reason for granting the upward departure,
and Jones’ argument that the court upwardly departed to cure the
Government’s dissatisfaction with its own charging decision is
not supported by the record.



                                           5
establish    an    abuse    of     discretion       by   the     district      court.          A

defendant’s       disagreement      with      the   sentence         imposed      does       not

constitute reversible error.              Evans, 526 F.3d at 162.

            Finally,       we    reject    Jones’        claim    that      the     district

court erred in “double-counting” his prior convictions.                                 Review

of the record reveals that the district court was fully aware of

the prohibition against “double-counting.”                       The district court’s

departure    decision      was     based    wholly       on    its    analysis          of   the

adequacy     of     Jones’       criminal       history          category         and        its

determination that a criminal history category of IV failed to

adequately      reflect     either      the     seriousness          of     Jones’       prior

criminal     actions       or    his    significant           likelihood       of       future

recidivism.       Moreover, even if the district court had erred in

calculating       the    departure,        in   the      absence       of     the       upward

departure, Jones’ 132-month sentence would have been proper as a

variance sentence.         See Williams v. United States, 503 U.S. 193,

204 (1992); Evans, 526 F.3d at 165 (“When . . . a district court

offers two or more independent rationales for its deviation, an

appellate court cannot hold the sentence unreasonable if the

appellate       court      finds       fault    with          just    one      of        these

rationales.”).

            Accordingly, we affirm Jones’ conviction and sentence.

We   dispense     with    oral     argument     because        the    facts       and    legal



                                            6
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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