                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4825


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CIPRIANO DIAZ-GALIANA, a/k/a Vincente      Diaz-Rosas,   a/k/a
Vincente Diaz Rosas, Vincente Diaz,

                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. (7:10-cr-00071-D-1)


Submitted:   June 5, 2012                 Decided:    June 19, 2012


Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. H. Paramore, III, W. H. PARAMORE, III, P.C., Jacksonville,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Cipriano Diaz-Galiana appeals his 120-month sentence

following       a   guilty       plea       to   illegal      reentry    by    an      aggravated

felon, in violation of 8 U.S.C. § 1326 (2006).                              On appeal, Diaz-

Galiana        argues      that       the    district         court    erred     in     upwardly

departing        under          the    Sentencing            Guidelines.            Finding     no

reversible error, we affirm.

               Prior       to    sentencing,           the    presentence       investigation

report (“PSR”) calculated Diaz-Galiana’s base offense level at

eight, pursuant to U.S. Sentencing Guidelines Manual (“USSG”) §

2L1.2    (2010),          with    a    twelve-level           enhancement        for    specific

offense characteristics, pursuant to USSG § 2L1.2(b)(1)(B), and

a     three-level         reduction          for       acceptance      of     responsibility,

pursuant to USSG § 3E1.1(b).                           Diaz-Galiana’s adjusted offense

level     of     seventeen,           combined         with    a    category     IV     criminal

history, yielded an advisory Guidelines range of thirty-seven to

forty-six       months’         imprisonment.            At    sentencing,       the     district

court    determined          that      the       PSR    incorrectly         calculated      Diaz-

Galiana’s        criminal         history        category,         reducing    his       criminal

history    to       a    category      III.           Thus,   Diaz-Galiana’s           Guidelines

range became thirty to thirty-seven months in prison.

               In       addition,      the       district      court     found      that    Diaz-

Galiana’s advisory Guidelines range failed to adequately reflect

the    nature       and    seriousness           of    his    criminal      history,       or   the

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likelihood that he would commit future crimes.                          Pursuant to USSG

§ 4A1.3,       the    court    increased         Diaz-Galiana’s        criminal    history

category to VI and increased his offense level to twenty-one.

The    court    also       found    that    Diaz-Galiana’s       advisory        Guidelines

range failed to take into account his dismissed and uncharged

conduct,       further      increasing       his     offense    level    to     twenty-four

pursuant to USSG § 5K2.21, yielding an advisory range of 100 to

125 months’ imprisonment.                  The court sentenced Diaz-Galiana to

120 months in prison, and Diaz-Galiana appealed, arguing that

the court’s upward departure was excessive in light of the 18

U.S.C. § 3553(a) (2006) factors.

               We review a sentence imposed by the district court

under    a    deferential          abuse    of   discretion      standard.         Gall    v.

United States, 552 U.S. 38, 46 (2007); United States v. Lynn,

592    F.3d     572,       578-79    (4th     Cir.     2010).         When     reviewing   a

departure, this court considers “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.    Hernandez-

Villanueva,          473    F.3d     118,     123     (4th     Cir.     2007)     (citation

omitted).

               Pursuant to USSG § 4A1.3(a)(1), a court may upwardly

depart from the Guidelines range if the court determines that

“the defendant’s criminal history category substantially under-

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represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.”

In   making     this     determination,             the   court     may    consider     prior

sentences       not    used     in    calculating          the    defendant’s      criminal

history, as well as prior criminal conduct not resulting in a

criminal conviction.              USSG § 4A1.3(a)(2).                   In addition, under

USSG § 5K2.21, a court may depart upward to “reflect the actual

seriousness of the offense based on conduct (1) underlying a

charge dismissed as part of a plea agreement or for any other

reason; and (2) that did not enter into the determination of the

applicable guideline range.”

              We   find    that      the    district       court     did    not   abuse   its

discretion in upwardly departing, as the record contains ample

evidence      to      support     the      court’s        judgment.         Diaz-Galiana’s

category III criminal history significantly underrepresented his

extensive criminal conduct, including uncounted convictions for

accessory       after     the    fact      to   murder,          drug    trafficking,     and

carrying    a      concealed      weapon.           Moreover,       Diaz-Galiana’s        five

prior convictions for illegally reentering the United States,

coupled    with       seven     additional          occasions      resulting      in   Diaz-

Galiana’s voluntary removal or detainment, reveal a history of

recidivism unaccounted for in his advisory Guidelines range.                                In

addition, the court properly weighed the significance of the

dismissed charge against Diaz-Galiana, possession of a firearm

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by   an   illegal   alien,    given   that   Diaz-Galiana   was   found   in

possession of seven firearms and over 1,000 rounds of ammunition

at the time of his arrest.

            Accordingly, we 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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