                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4745


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DILADE MCCOY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:14-cr-00044-REP-2)


Argued:   September 17, 2015                 Decided:   October 15, 2015


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Gregory joined.


ARGUED:   Gregory  Bruce   English,  ENGLISH  LAW  FIRM,   PLLC,
Alexandria, Virginia, for Appellant.   Angela Mastandrea-Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.   ON BRIEF:   Dana J. Boente, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       Dilade McCoy challenges as substantively unreasonable his

188-month sentence for conspiracy and possession with intent to

distribute cocaine.         We affirm.



                                               I.

       In 2014, a federal grand jury indicted McCoy for conspiracy

to distribute and possess with intent to distribute 500 grams or

more    of   cocaine,     in    violation           of    21   U.S.C.     §    846       (2012);

possession        with   intent      to    distribute          500    grams    or    more    of

cocaine,     in    violation        of    21   U.S.C.      §    841(a),       (b)(1)(B)(ii)

(2012); and possession of ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2012).                             At trial, his co-

defendant     testified        to    buying         cocaine     from     McCoy      on    three

occasions:         an early summer 2013 sale of one kilogram, a late

summer 2013 sale of three kilograms that were returned for poor

quality, and a November 2013 sale of three kilograms.                                The jury

found McCoy guilty of the drug-related charges for an amount of

cocaine greater than 500 grams but less than 5 kilograms.

        In   the     Presentence          Investigation              Report    (PSR),       the

probation officer counted all three sales and attributed seven

kilograms of cocaine to McCoy,                     above the range the jury found.

Pursuant to the U.S. Sentencing Guidelines Manual § 2D1.1(c)(4)

(U.S.    Sentencing      Comm’n       2013),        the   PSR    pegged       McCoy’s      base

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offense    level       at    32.         The      PSR    calculated      McCoy’s      criminal

history   category          as    II,    reflecting           three   points    for    a    2005

conviction for criminal possession of cocaine with intent to

distribute.          The resulting advisory Guidelines range was 135 to

168 months’ imprisonment.

       McCoy objected to the amount of cocaine attributed to him,

arguing that he should be held accountable only for the amount

of    cocaine    found       by    the    jury,         which   would    reduce     his     base

offense level to 30 and Guidelines range to 108 to 120 months.

He sought a term of imprisonment no greater than the statutory

mandatory minimum sentence of 120 months.

       The Government moved for an upward departure, arguing that

McCoy’s criminal history category understated the seriousness of

his   criminal       past.        While       a    juvenile,     McCoy    committed        three

felonies, for which he was tried as an adult.                            He committed two

robberies       in    1986       at     age       15,   was     convicted      of   both    and

imprisoned.          In 1989, at age 17 and one year after his release

from prison, he committed another violent crime, pleading guilty

to assault with intent to cause serious injury with a weapon.

For that offense, he served eight years in prison.                                     He was

discharged from parole in 2000 and arrested less than five years

later, resulting in the 2005 conviction for criminal possession

of cocaine.          Because McCoy committed the robberies and assault

more than fifteen years before the present offenses, the PSR did

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not   count   them       in    determining        his   criminal          history    category

pursuant to Guidelines § 4A1.2(e)(3).                      To reflect the juvenile

convictions, the Government requested an increase to criminal

history   category        IV    and    a   sentence      of    192    months,       which    is

within the applicable 168-to-210 month Guidelines range.                                McCoy

objected to consideration of his juvenile convictions because of

their remoteness and his youth at the time of the offenses.

      The district court rejected McCoy’s objection to the amount

of cocaine attributed to him.                    In response to the Government’s

motion for upward departure, the court observed that McCoy’s

criminal history was “quite serious” and that “the facts here

call for the application of [§] 4A1.3,” which governs upward

departures based on the inadequacy of a defendant’s criminal

history   category.            The    court      counted      all    three    convictions,

resulting     in    an    additional        eight       points,       placing       McCoy    in

criminal history category V with a Guidelines range of 188 to

235   months’      imprisonment.           The    court    sentenced         McCoy    to    188

months’     imprisonment,             explaining        that        the     departure       was

“necessary to protect the public from the defendant, to promote

respect for the law, to deter the defendant, and to deter others




                                              4
similarly     situated.”         McCoy     noted       a     timely   appeal       of   this

sentence. 1

     We     review       a     sentence     for        reasonableness          “under      a

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

States,    552    U.S.   38,    41     (2007).         The    same    standard     applies

whether the sentence is “inside, just outside, or significantly

outside     the    Guidelines        range.”           Id.       However,      a    “major

departure” from the Guidelines range “should be supported by a

more significant justification than a minor one.”                             Id. at 50.

In reviewing a departure from the advisory Guidelines range, we

“defer to the trial court and can reverse a sentence only if it

is unreasonable, even if the sentence would not have been [our]

choice.”      United States v. Evans, 526 F.3d 155, 160 (4th Cir.

2008) (emphasis omitted).



                                          II.

     McCoy       makes   no    claim    that     his       sentence   is     procedurally

unreasonable, but he poses several challenges to the substantive

reasonableness of his sentence.             Each argument fails.




     1 McCoy filed a pro se supplemental brief in which he also
challenges the sufficiency of the evidence.       After thorough
review of these arguments, we find that they lack merit.


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                                            A.

      First,      McCoy    asserts     that      his    sentence      is    substantively

unreasonable because the district court “improperly considered”

his stale juvenile convictions.                  Appellant’s Br. 15.               He argues

that these crimes, which he committed between the time he was 15

to   17   years     old,   and     which     occurred         approximately        25    years

before    he    committed      the   instant          crimes,    do   not    justify       the

district court’s upward departure.

      Section 4A1.3(a)(1) of the Guidelines authorizes an upward

departure       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); see United States v. Whorley, 550 F.3d

326, 341 (4th Cir. 2008) (noting that an under-representative

criminal history category is an “encouraged” basis for upward

departure).          A   court   may    base      a     Guidelines     §    4A1.3       upward

departure      on    a   defendant’s       prior      convictions,         even    if    those

convictions are too old to be counted in the calculation of the

Guidelines       range     under       Guidelines         §     4A1.2(e).           U.S.S.G.

§§ 4A1.2(e) cmt. n. 8, 4A1.3(a)(2)(A).

      The      district    court     found       that    McCoy’s      criminal       history

category       under-represented         his      criminal        history         enough    to

warrant an upward departure.               The court recognized McCoy’s youth

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at the time he committed the robberies and the assault with

intent to cause serious injury with a weapon.                                         The court also

recognized       the     remoteness         of     these      crimes         from        his      present

offenses.        But given the seriousness of the juvenile crimes and

the     fact     that     McCoy       committed         another             crime       --       criminal

possession of cocaine -- within five years of being released

from    prison    on     the    third       juvenile        charge          (the       assault),         the

court    found     that    counting          the      juvenile          felonies            in    McCoy’s

criminal history better represented that “serious” history and

his likelihood of recidivism.

        Relying heavily on our recent decision in United States v.

Howard, 773 F.3d 519 (4th Cir. 2014), McCoy maintains that the

district       court     abused       its    discretion            in       so    reasoning.              In

Howard,    we     held    that       the    imposition        of        a    life       sentence,         an

enormous       departure       from    the       121-month         top       of       the     Guidelines

range, on the basis of juvenile, non-violent, stale convictions,

constituted an abuse of discretion.                           Howard, 773 F.3d at 528,

535-36.         Howard    is    clearly       distinguishable                from       the       case    at

hand.      For here the court imposed a much more modest upward

departure       (from    168     months       to      188    months)             on    the       basis    of

violent juvenile crimes.                   We have found reasonable far greater

upward departures based on similar facts.                                    See, e.g., United

States     v.     Myers,       589     F.3d       117       (4th        Cir.          2009)      (finding

reasonable an upward departure from 121 months to 360 months

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based on three stale convictions); United States v. Lawrence,

349 F.3d 724, 727 (4th Cir. 2003) (finding reasonable an upward

departure from 96 months to a total of 262 months based in part

on the defendant’s “extensive juvenile record”).                            The district

court here departed upward a number of months that “pale[s] in

comparison to” the upward departure in Howard, 773 F.3d at 530,

and did not abuse its discretion in considering McCoy’s violent

juvenile crimes in doing so.

                                            B.

      Second,      McCoy    argues    that       his    sentence   is    substantively

unreasonable because the district court increased his criminal

history category to V, even though the Government only requested

an increase to category IV.                 He again seeks to analogize his

case to Howard, where we recognized that, although “no district

court is ever mandated to impose the sentence recommended by the

prosecution,” it was notable that the district court’s sentence

of life imprisonment was far longer than the 360-month sentence

advocated by the Government.                773 F.3d at 533-35.              We pointed

out   that   the     Government’s          recommendation       “can     serve     as    an

important    pillar”       in   achieving        “the   avoidance      of    unwarranted

sentencing    disparities,”          one    of    the    principle      goals      of   the

Sentencing Reform Act of 1984 and the Guidelines.                       Id. at 535.

      We   stand    by     those   observations,         but   they     do   not   assist

McCoy for, although the district court increased his criminal

                                             8
history category above the Government’s request, the sentence of

188   months     was     lower     than      the    192    months     requested        by   the

Government.           Furthermore,        had       the    district       court    increased

McCoy’s criminal history category to IV, as requested by the

Government, a sentence of 188 months would still have fallen

within    the    resulting       Guidelines         range      of   168   to     210   months.

Thus, this increase in the criminal history category does not

raise     the     issue       of     “unwarranted           sentencing         disparities”

identified in Howard.

                                              C.

        Third,    McCoy    maintains         that    his       sentence    overstates       the

seriousness of his offense.                  He argues that the three-kilogram

order placed in November 2013 merely replaced the three-kilogram

order returned in the summer of 2013.                          McCoy concedes that all

seven kilograms “can properly be considered” in the “technical

determination” of his base offense level.                           Appellant’s Br. 18.

However, he contends that the district court should have used

its discretion to depart downward to a base offense level of 30,

based     only    on     four      kilograms        of    cocaine,        to   reflect      the

“reality”        of     how     much      cocaine         he      actually        trafficked.

Appellant’s      Br.     18-19.        The    record       does     not   support      McCoy’s

argument that the third sale was a replacement, nor would the

district court have abused its discretion by basing the base

offense    level       calculation      on    seven       kilograms       even    if   it   did

                                                9
constitute a replacement.          See United States v. Young, 609 F.3d

348, 357 (4th Cir. 2010).

                                          D.

     Lastly,   McCoy    argues     that        his       sentence     is   substantively

unreasonable because Amendment 782 to the Guidelines went into

effect   shortly    after   he    was     sentenced.           Amendment      782    is   a

retroactive    amendment    that         lowered         the   base    offense      levels

applicable to drug-related crimes.                       Post-sentencing Guidelines

amendments do not make a pre-amendment sentence unreasonable.

See United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).

The district court correctly applied the Guidelines prevailing

at the time of sentencing.           The proper avenue for a request for

application    of   Amendment      782     is        a    motion    under    18     U.S.C.

§ 3582(c)(2), which would allow the district court to assess in

the first instance whether and to what extent the amendment may

affect McCoy’s sentence.         Id. 2



                                         III.

     For the foregoing reasons, the judgment of the district

court is

                                                                              AFFIRMED.


     2  Our holding as to the substantive reasonableness of
McCoy’s sentence is rendered without prejudice to McCoy’s right
to pursue such relief in the district court.


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