                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4139


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAKIM RASHEED HANIFAH, a/k/a Bloody Hock,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:09-cr-00061-D-1)


Submitted:   March 17, 2011                 Decided:   April 13, 2011


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.     George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Tobin W. Lathan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Hakim      Rasheed        Hanifah         pled     guilty          to    one     count    of

possession of a firearm by a convicted felon, in violation of 18

U.S.C.       §§    922(g)(1),             924    (2006).            He    appeals           the    district

court’s decision to impose an upward departure.                                            He claims the

departure          was      excessive           because       it    was       based,        in    part,    on

conduct       that          was     already       incorporated                into        the    Sentencing

Guidelines.            Finding no error, we affirm.

                  An       upward        departure         may     be     warranted             under     U.S.

Sentencing Guidelines Manual § 4A1.3 if the sentencing court

finds       that       a    defendant’s          criminal          history      category           does    not

represent the defendant’s criminal history or the likelihood of

recidivism.            United States v. Myers, 589 F.3d 117, 125 (4th Cir.

2009).        The Guidelines contemplate a situation in which even

Criminal       History            Category       VI    is     insufficient            to        reflect    the

seriousness of the defendant’s criminal conduct,                                           in which case

the court may incrementally increase the offense level.                                                    See

USSG    § 4A1.3(a)(4)(B).                   The       Guidelines          further          note    that     an

upward departure may be warranted in the case of a defendant who

has    an    extensive            record     of       prior      assaults,       but        has    received

lenient       treatment             by     the    courts.               See     USSG        § 4A1.3       cmt.

background.            A court’s decision to impose an upward departure is

reviewed for abuse of discretion.                             Myers, 589 F.3d at 127.                     This

court must decide whether the district court acted reasonably

                                                       2
with respect to the decision to impose an upward departure and

the    extent    of   the    departure.            United      States      v.    Hernandez-

Villanueva, 473 F.3d 118, 123 (4th Cir. 2008).

            We conclude that the district court properly explained

its reasons for applying an upward departure and find that the

decision   to     impose     an    upward    departure         was    reasonable.         The

court properly took notice of the violent nature of Hanifah’s

past criminal conduct, the leniency he has received from the

courts,    his    admitted        gang   membership,        and      the    fact   that   he

committed an assault while detained awaiting sentencing.                                  We

further    conclude         that     the     extent       of      the      departure      was

reasonable, given the seriousness of the offense, his history of

assaultive       conduct,    the     fact    that    there      was     nothing     in    the

record to suggest that Hanifah was going to stop his violent

behavior anytime soon and the need to deter him and others from

engaging in similar conduct.

            Accordingly, we affirm the sentence.                        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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