                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5008


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD LEE ADAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:08-cr-00004-D-1)


Submitted:   December 7, 2010             Decided:   January 3, 2011


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Slade C. Trabucco, THE TRABUCCO LAW FIRM, P.A., Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

               Pursuant to the terms of his written plea agreement,

Richard Lee Adams pleaded guilty to robbery, using and carrying

a   firearm     during     a    crime      of   violence,        and    possession       of   a

firearm by a convicted felon.                       The district court granted the

Government’s motion to depart from the advisory Guidelines range

under    inter      alia     U.S.     Sentencing       Guidelines       Manual     (“USSG”)

§ 4A1.3(a)(1) (2008).            The court then sentenced Adams to a total

of 240 months in prison.                   Counsel for Adams has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that,    in     his    view,     there        are     no    meritorious     issues,       but

questioning whether the district court committed clear error by

granting the Government’s motion for an upward departure under

USSG § 4A1.3.          Although advised of his right to file a pro se

supplemental brief, Adams has not done so.                             For the following

reasons, we affirm.

               In assessing a sentencing court’s decision to depart

from a defendant’s Guidelines range, we “consider whether the

sentencing         court   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.)    (internal

quotation marks omitted), petition for cert. filed, __ U.S.L.W.

__ (U.S. July 2, 2010) (No. 10-5258).                       Under USSG § 4A1.3(a)(1),

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a court may depart upward based upon its determination that the

calculated          criminal           history             category        substantially

underrepresents either the seriousness of the defendant’s past

criminal      conduct      or   the    likelihood          that   the    defendant    will

commit     other      crimes.         In     the      background        commentary,     the

Sentencing Commission recognized that an upward departure may be

appropriate for “younger defendants (e.g., defendants in their

early twenties or younger) who are more likely to have received

repeated lenient treatment, . . . [as they] may actually pose a

greater risk of serious recidivism than older defendants.”                            USSG

§    4A1.3,   p.s.,      cmt.   (backg’d).            In   choosing     the   appropriate

criminal history category for departure, the court should use

“as a reference, the criminal history category applicable to

defendants whose criminal history or likelihood to recidivate

most     closely        resembles     that       of    the      defendant’s.”         USSG

§ 4A1.3(a)(4)(A).

              Adams does not identify on what basis the district

court may have erred in imposing a departure under § 4A1.3.                              We

conclude that the district court made specific findings of fact

and    relied      on     appropriate       factors        in     determining    that     a

departure was warranted.              Adams was twenty-one years old at the

time of his sentencing, and the district court determined that

he had a history of violent behavior and had repeatedly failed

to    perform   well      during      his    previous        probationary     sentences.

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Moreover, certain of Adams’ prior convictions were consolidated,

resulting in a more lenient sentence.                    In addition, the district

court noted that Adams was a gang member and had a number of

institutional infractions.

             Reliance        upon    the      defendant’s        continued      criminal

conduct     during     incarceration          and   supervised         release,        which

demonstrates      that       the   criminal     justice     system      had   previously

failed to deter, is a proper basis for a USSG § 4A1.3 departure.

See McNeill, 598 F.3d at 166.                 In addition, the court correctly

relied    upon    Adams’      relatively      young      age   and     relatively       long

history of “poor interaction with the criminal justice system.”

Accordingly, we find that the district court acted reasonably in

granting the departure.

             Next,     we     must    consider      the    reasonableness         of    the

extent      of   the    departure.          Here,     in       accordance      with     the

Guidelines’ instructions, the district court determined that the

criminal history of Category VI defendants most closely mirrored

Adams’ criminal background.                Adams did not contend below or on

appeal that his criminal history was not substantially similar

to   Category     VI    defendants.           Accordingly,        we   find     that    the

district     court     reasonably      increased         Adams’      Criminal     History

Category from IV to VI.

             Pursuant to Anders, we have examined the entire record

in   this    case,     and    we    have   found    no     meritorious        issues    for

                                            4
appeal.    Accordingly, we affirm the district court’s judgment.

This court requires that counsel inform his client, in writing,

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

for further review.       If the client 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 the client.           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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