                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4713


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH GLENN HINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-00485-TLW-1)


Submitted:   July 27, 2011                 Decided:   August 4, 2011


Before NIEMEYER, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael   Chesser,  Aiken,   South   Carolina,  for   Appellant.
William N. Nettles, United States Attorney, Robert F. Daley,
Jr., Assistant United States Attorney, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Kenneth         Glenn      Hinson      was      convicted          of     unlawful

possession of a firearm by a convicted felon and sentenced to a

term of 115 months’ imprisonment. *                  Hinson appeals his sentence,

arguing that the court erred in finding that he possessed the

firearm    in     connection          with   another        felony,    U.S.          Sentencing

Guidelines        Manual        § 2K2.1(b)(6)         (2009),         and       abused        its

discretion       in    departing       upward      under    USSG    § 4A1.3,          p.s.    and

varying    upward          pursuant    to    18    U.S.C.    § 3553(a)          (2006).        We

affirm.

             A   sentence       is     reviewed      for    reasonableness            under    an

abuse of discretion standard.                     Gall v. United States, 552 U.S.

38, 51 (2007).             This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                                     Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

The court must first ensure that the district court did not

commit any “significant procedural error,” such as failing to

properly calculate the applicable Guidelines range, failing to

consider   the        18    U.S.C.A.    § 3553(a)      (West       2000     &   Supp.     2006)


     *
       The district court initially sentenced Hinson as an armed
career criminal to 300 months imprisonment.          18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2011). In his first appeal, we held
that he lacked the necessary predicate convictions for an armed
career criminal sentence and remanded the case for resentencing.
United States v. Hinson, 363 F. App’x 998 (4th Cir. 2010).



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factors, or failing to explain the sentence adequately.                                 Gall,

552    U.S.   at     51.        If     the      sentence   is     free     of    significant

procedural error, the appellate court reviews the substantive

reasonableness of the sentence.                   Lynn, 592 F.3d at 575.

              Section 2K2.1(b)(6)                 provides        for       a     four-level

enhancement “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.”                                  USSG

§ 2K2.1(b)(6).         “[T]he purpose of Section 2K2.1(b)(6) [is] to

punish more severely a defendant who commits a separate felony

offense that is rendered more dangerous by the presence of a

firearm.”      United States v. Jenkins, 566 F.3d 160, 164 (4th Cir.

2009) (internal quotation marks omitted).

              “‘Another felony offense,’ for purposes of subsection

(b)(6),    means     any        federal,        state,   or     local      offense[]    . . .

punishable      by    imprisonment           for     a   term     exceeding       one   year,

regardless     of     whether         a   criminal       charge      was    brought,    or   a

conviction obtained.”                USSG § 2K2.1 cmt. n.14(C).                 A firearm is

used or possessed “in connection with” another felony offense if

it    “facilitated,        or    had      the    potential      of   facilitating,”       the

offense.       Id. cmt. n.14(A); see Jenkins, 566 F.3d at 162-63.

“[I]n the case of a drug trafficking offense in which a firearm

is found in close proximity to drugs, . . . application of [the

four-level enhancement] is warranted because the presence of the

firearm has the potential of facilitating another felony offense

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. . . .”        USSG § 2K2.1 cmt. n.14(B); see Jenkins, 566 F.3d at

163.

            The district court determined that the enhancement was

warranted because Hinson had testified under oath at his state

trial on other charges that he was a drug dealer and that he

fled his home because he thought law enforcement officers knew

about four pounds of marijuana he had stored in his basement.

In addition, the district court considered Hinson’s post-arrest

statement to law enforcement officers that he always had a gun

with him.        Based on the uncontested evidence before the court,

we    conclude    that      the   district       court   did    not    clearly    err    in

finding that Hinson was selling marijuana and that the firearm

he    possessed    had      the   potential       to   facilitate      that     activity.

Therefore, the district court properly applied the four-level

enhancement under USSG § 2K2.1(b)(6).

            Next,      we    review    the       district      court’s    departure     by

considering “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).           Under   USSG      § 4A1.3(a)(1),        the    district

court may upwardly depart from the Guidelines sentence if the

court determines that “the defendant’s criminal history category

substantially          under-represents            the      seriousness         of      the

                                             4
defendant’s       criminal     history             or     the     likelihood      that   the

defendant will commit other crimes[.]”                           The court may consider

prior    sentences    not     used       in    computing          the   criminal    history

category.       See USSG § 4A1.3(a)(2)(A).

            The district court considered two sentences that were

too old to be counted:          one for aggravated assault and battery;

and one for cocaine trafficking.                    Hinson points out that a prior

sentence not counted in the defendant’s criminal history because

it is too old, i.e., outside the applicable time period set out

in § 4A1.2, may be the basis for a departure only if the old

conviction involved similar or serious dissimilar conduct.                               See

USSG § 4A1.2 cmt. n.8.          The district court specifically declined

to find that the prior criminal conduct underlying the uncounted

sentences was similar to Hinson’s § 922(g)(1) conviction, but

found that the offenses were “very serious.”

            Hinson     argues       that       the       prior    offenses,    aggravated

assault     and     battery        and        cocaine         trafficking,        were   not

sufficiently       serious     to        warrant          a     departure   because      the

aggravated assault occurred at least twenty years before the

instant    offense    and    the     cocaine            trafficking     offense    involved

only possession of eleven grams of cocaine.                         However, the age of

the assault and battery does not lessen its seriousness; the

presentence report states that Hinson struck another man with a

car     jack.       Moreover,        Hinson             appears    to    understate      the

                                               5
seriousness of his cocaine trafficking offense.                              The record in

this    appeal       does    not    disclose        the    exact   quantity      of   cocaine

involved in Hinson’s cocaine trafficking offense but, from the

available information, it appears that it was more than eleven

grams.         We     conclude          that    the       district     court     reasonably

determined that both of Hinson’s uncounted sentences were for

serious criminal conduct and that criminal history category II

significantly         under-represented             his    criminal      history      and   his

risk     of    recidivism.              Thus,       the     decision      to    depart      was

reasonable.         Moreover, in departing, the district court followed

the incremental approach set out in § 4A1.3(a)(4)(A), and the

extent of the departure was reasonable.

               After departing upward, the district court announced

that it would also vary upward by two levels.                            Hinson maintains

that     the       variance       was    both    procedurally         and      substantively

unreasonable because, in his view, the court relied again on the

uncounted sentences which were the basis for the departure to

justify        a     further       increase         in     his     sentence.            Hinson

mischaracterizes            the    court’s      reasons      for   the    variance.         The

court    noted       Hinson’s       propensity        to    commit     new     crimes    after

incarceration, and to commit violent crimes, first against an

adult, then against a child.                        The court also reviewed the §

3553(a) factors in light of the undisputed record and stated

that an upward variance was necessary to reflect the seriousness

                                                6
of the instant offense, promote respect for the law, provide

adequate deterrence to criminal conduct, and protect the public

from further crimes of the defendant.                   Alternatively, the court

found that the testimony of the four witnesses who testified at

sentencing that Hinson had sexually abused them when they were

children had sufficient indicators of reliability to justify a

two-level variance.

               Thus, the court’s first ground for a variance was not

simply the fact of Hinson’s prior uncounted offenses, but his

failure to be deterred by prior incarcerations and the nature of

his offenses.        The court’s second ground was credible evidence

of a number of sexual crimes Hinson had committed, only one of

which he had been convicted and punished for.                     We are satisfied

that the court’s variance was reasonable on either ground and

the     resulting       sentence    was     procedurally         and    substantively

reasonable.

               We   therefore      affirm       the   sentence     imposed    by    the

district    court.        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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