                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4795


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JARVIS NATHAN MCNEAL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-01049-RBH-1)


Submitted:   May 12, 2010                     Decided:   June 2, 2010


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jarvis Nathan McNeal appeals his convictions and the

189-month sentence imposed by the district court after he pled

guilty to armed bank robbery and brandishing a firearm during

and in relation to a crime of violence.                          McNeal’s counsel has

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

(1967), asserting that, in his opinion, there are no meritorious

grounds for appeal, but questioning whether McNeal’s plea was

knowing    and    voluntary,      and    whether      the    sentence     imposed     was

reasonable.        McNeal       has   filed     a   pro     se    supplemental       brief

arguing   that     the   district       court   erred       in    granting     an   upward

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

§ 4A1.3 (2007) based on his post-plea criminal conduct while on

bond for the instant offense.             We affirm.

            Because McNeal did not move in the district court to

withdraw his guilty plea, we review any error in the Fed. R.

Crim. P. 11 hearing for plain error.                  United States v. Martinez,

277 F.3d 517, 525 (4th Cir. 2002).                   “To establish plain error,

[McNeal] must show that an error occurred, that the error was

plain,    and    that    the    error    affected     his        substantial    rights.”

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).

Our review of the record leads us to conclude that the district

court fully complied with Rule 11, and that McNeal’s guilty plea

was knowing and voluntary.

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              We     next     review    McNeal’s     sentence.       We    review    a

sentence for abuse of discretion.                   Gall v. United States, 552

U.S. 38, 51 (2007).             The first step in this review requires us

to   ensure    that     the     district    court    committed   no       significant

procedural error.             United States v. Evans, 526 F.3d 155, 161

(4th Cir.), cert. denied, 129 S. Ct. 476 (2008).                          Significant

procedural errors include “‘failing to calculate (or improperly

calculating) the Guidelines range, . . . failing to consider the

[18 U.S.C.] § 3553(a) factors, . . . or failing to adequately

explain the chosen sentence--including an explanation for any

deviation from the Guidelines range.’”                  United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at

51).      We then consider the substantive reasonableness of the

sentence, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.             When reviewing a sentence on appeal, we

presume    a       sentence    within    the    properly-calculated        Guideline

range is reasonable.            United States v. Allen, 491 F.3d 178, 193

(4th Cir. 2007).

              Here,      the     district       court     departed        upward    in

calculating the applicable Guideline range, on the ground that

McNeal’s       criminal        history     category      under-represented          the

seriousness of his criminal history.                    USSG § 4A1.3(a).           When

reviewing a departure, we consider “whether the sentencing court

acted reasonably both with respect to its decision to impose

                                            3
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).                           Under USSG §

4A1.3(a)(1),       “[i]f    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,

an upward departure may be warranted.”                      In determining whether

an upward departure is called for, the district court may look

to “[p]rior similar adult criminal conduct not resulting in a

conviction.”         USSG     § 4A1.3(a)(2)(E).             See    United     States    v.

Dixon, 318 F.3d 585, 591 (4th Cir. 2003) (approval of an upward

departure under § 4A1.3(a)(1) based on four pending charges).

              We   have    reviewed     the   record     and       conclude    that    the

district’s court decision to depart upward was procedurally and

substantively reasonable.             First, the testimony of the victims

of     McNeal’s     post-plea     criminal      conduct           was   reliable,      and

indicated that McNeal had committed the crimes.                              Second, the

criminal conduct at issue was similar to the instant offense.

Third, McNeal’s post-plea crime spree was committed after he had

been released on bond for the instant offense so that he could

cooperate with the government.

              In    addition,     the     extent       of      the      departure      was

reasonable.          McNeal’s     post-plea       criminal          conduct     provided

                                          4
persuasive         grounds      for    the     district        court       to    conclude       that

McNeal’s         criminal      history       classification           in    category       II   was

insufficient to reflect the seriousness of his criminal history,

or   the   likelihood          that    he     would      commit     future       crimes.         The

district court moved horizontally from criminal history category

II to category IV by assigning criminal points based on McNeal’s

post-plea conduct.              We conclude that this methodology complied

with the Guidelines requirement that, in deciding the extent of

a departure, the court shall 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).                 Therefore, we conclude

that   the         extent      of      the     district         court’s         departure        was

reasonable.

                 Thus,    we    find        that       the    district          court    properly

calculated the Guideline range.                         Further, the district court

considered         the      parties’         arguments        and      relevant         § 3553(a)

factors, including McNeal’s history and characteristics and the

need   for       the   sentence       to     protect     the    public,         and     reasonably

imposed      a    sentence      at     the    high      end    of     the    advisory      range.

Therefore,          McNeal’s          sentence         is      both        procedurally          and

substantively reasonable.

                 In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

                                                   5
appeal.     We    therefore     affirm     the    district    court’s     judgment.

This court requires that counsel inform McNeal in writing of his

right to petition the Supreme Court of the United States for

further review.          If McNeal 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 McNeal.

            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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