                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4545


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DEWAYNE JEMALE BLAKENEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (4:10-cr-00036-D-1)


Argued:   October 25, 2012                 Decided:   December 13, 2012


Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a separate opinion concurring in the judgment.


ARGUED:   Mary   Jude  Darrow,  Raleigh,   North  Carolina,    for
Appellant.     Yvonne Victoria Watford-McKinney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             On November 8, 2010, DeWayne Jemale Blakeney pleaded

guilty to one count of manufacturing counterfeit federal reserve

notes, in violation of 18 U.S.C. § 471.                          Blakeney now appeals

his   sentence         of    120   months     imprisonment          arguing    that     it   is

unreasonable.           For the following reasons, we affirm the district

court’s judgment.



                                              I.

              On May 6, 2009, Blakeney passed counterfeit currency

at a Subway restaurant in Vanceboro, North Carolina, and was

arrested the next day.               On May 20, 2009, Nicki Nolder and Ashley

Duzan passed counterfeit bills at a Walmart in Washington, North

Carolina, and were also arrested.                     Further investigation again

led     to   Blakeney,         who    admitted      producing         about    $30,000       in

counterfeit       currency         together    with      Noah    Campbell       and    Thomas

King.        Blakeney        was     cooperative      and     admitted        his    criminal

conduct.          In    a    two-count      indictment        filed     in     the    Eastern

District of North Carolina on May 5, 2010, Blakeney was charged

with counterfeiting and conspiracy to counterfeit.                             On November

8, 2010, he pled guilty to counterfeiting in violation of 18

U.S.C. § 471.

             In        the   presentence       report,        the     probation       officer

recommended       a     base   offense      level   of    9     under   U.S.        Sentencing

                                               2
Guidelines (“USSG”) § 2B5.1(a), with a 4-level increase under

subsection (b)(1)(B) for an offense involving $10,000-$30,000,

and    a       further      increase         to     offense        level      15   because         Blakeney

possessed            counterfeiting               devices          or        materials.             See     §

2B5.1(b)(2)(A), (b)(3).                      With a 2-level role adjustment under

USSG       §    3B1.1(c)         and    a    3-level         reduction          for    acceptance         of

responsibility,              USSG      §     3E1.1,         the    total       recommended          offense

level was 14.               Blakeney had 15 criminal history points, which

placed         him    in    category          VI.           As    a     result,    his    recommended

advisory         Guidelines            range      was       37-46       months.        The     probation

officer         also      suggested          that     the        district       court     consider        an

upward departure pursuant to USSG § 4A1.3 because category VI

was inadequate to account for Blakeney’s prior criminal record,

including 28 prior convictions, 16 of which were unscored.

                 Blakeney filed objections challenging the Guidelines

computation, in which he mentioned as a “factual” objection that

10    of       the   50     or    so    arrests         listed          in    paragraph       42    of    the

presentence report resulted from a failed relationship.                                                   The

United         States      moved       for     an    upward           departure       under     §   4A1.3,

pointing         out       that    Blakeney,          who         was    38    years     old,       had    28

criminal convictions between 1992 and 2009, most of which were

for relatively minor crimes such as larceny, drug possession,

trespassing,              communicating             threats,            and     driving        offenses.

However, Blakeney had one prior federal conviction for a crack

                                                        3
conspiracy     and,      after    he       served          his   federal     sentence,   he

violated his supervised release and, therefore, his supervised

release was revoked.           The United States argued that category VI

was an inadequate representation of Blakeney’s criminal history,

and that Blakeney was very likely to commit future crimes, thus

making an upward departure appropriate.                          Blakeney in turn filed

a     sentencing    memorandum        in    which          he    requested    a    downward

departure to a sentence of 33 months, based on his concern that

North    Carolina     had     given    him          less    credit   than     he   deserved

against his prior state sentences for his time in detention on

state charges.

            When Blakeney was sentenced in May 2011, the district

court overruled his objections to the presentence report.                                The

United States asked for an upward departure to a sentence of 60

months.     Defense counsel asked for a sentence at the top of the

Guidelines range.         The district court departed above category VI

by increasing the offense level from 14 to 26, which produced a

new    Guidelines     range      of   120-150         months.        In    doing   so,   the

district court stated that it was not required to discuss each

offense    level    it      rejected       in       the     course   of    selecting     the

appropriate offense level, citing United States v. Dalton, 477

F.3d 195, 199 (4th Cir. 2007).

            In support of the offense level increase, the district

court observed that but for the fact that some of Blakeney’s

                                                4
sentences were too old to be counted, he would have had 33

criminal history points, and that his 2004 federal sentence had

been reduced from 140 months to 60 months -- after which he

committed still more offenses.

            After      considering    the   18    U.S.C.   §    3553(a)    (2006)

factors    and   the    advisory   sentencing     guidelines,     the     district

court imposed a sentence of 120 months.              The court also ordered

Blakeney    to   pay    restitution    in   the   amount   of    $1,330     to   11

businesses where he had passed counterfeit currency.                    The court

noted that it had considered defense counsel’s arguments for a

lower sentence, including her assurances that Blakeney was ready

to change his life and the fact that none of his co-defendants

were   prosecuted      in   federal   court.      Following     the   sentencing

hearing, the court set out its findings and reasons for the

upward departure in a written sentencing order.                   The district

court explained:

       Blakeney stands before the court at 38 years of age
       with   a   long,   profound,  and   disturbing   criminal
       history. Blakeney is a recidivist’s recidivist. . . .
       Blakeney’s conduct reflects no respect for the law.
       Indeed, instead of rejecting a criminal lifestyle
       following     his    first   federal    conviction    and
       incarceration,    Blakeney   violated    his   supervised
       release conditions by engaging in new felonious
       criminal conduct.      Even after a revocation of his
       supervised    release   and  additional    incarceration,
       Blakeney returned to his criminal behavior by again
       possessing controlled substances and committing the
       instant offence. . . .       Both specific and general
       deterrence are critical in this case, particularly
       given Blakeney’s serious offense behavior, extensive

                                        5
     criminal record,    lack of respect for the law, poor
     performance while    on probation or under supervision,
     and near certain     likelihood of recidivism.  Society
     has long needed     protection from Blakeney and today
     will receive it.

United States v. Blakeney, No. 4:10-CR-36-D, 2011 WL 2118077, *5

(E.D.N.C. May 27, 2011). 1      Blakeney now appeals his sentence,

arguing that it was unreasonable and an abuse of discretion by

the district court.



                                  II.

            We review for reasonableness a sentence imposed by a

district court, applying an abuse of discretion standard.           See

Gall v. United States, 552 U.S. 38, 51 (2007).         In undertaking

such a review, “we must first ensure that the district court

committed no significant procedural error,” such as “failing to

calculate   (or   improperly   calculating)   the   Guidelines   range,

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from

the Guidelines range.”    United States v. Diosdado–Star, 630 F.3d

359, 363 (4th Cir. 2011) (internal quotation marks omitted).

     1
       The district court’s written sentencing order is found at
J.A. 139-161.    Citations to the “J.A.” refer to the Joint
Appendix filed by the parties in this appeal.



                                   6
Absent    a   significant          procedural     error,   our    next    step     is    to

assess the substantive reasonableness of the sentence imposed.

See id.       In either event, a “deferential abuse-of-discretion

standard”      applies       to     “any     sentence,     whether       inside,     just

outside, or significantly outside the Guidelines range.”                           United

States v. Savillon–Matute, 636 F.3d 119, 122 (4th Cir. 2011)

(internal quotation marks omitted).                     The district court “has

flexibility in fashioning a sentence outside of the Guidelines

range,” and need only “set forth enough to satisfy the appellate

court that it has considered the parties’ arguments and has a

reasoned basis” for its decision.                     United States v. Diosdado-

Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Rita v. United

States, 551 U.S. 338, 356 (2007)).                      As the Supreme Court has

cautioned, “[t]he fact that the appellate court might reasonably

have   concluded      that     a    different     sentence      was   appropriate        is

insufficient to justify reversal of the district court.”                           Gall,

552 U.S. at 51.

              Blakeney    appears       to    argue     that    the   district      court

erred when it departed upward from the advisory Guidelines range

and because the extent of the departure was unreasonable.                                 A

district court may depart upward based upon the inadequacy of

the    defendant’s       criminal          history    if   “reliable       information

indicates      that      the       defendant’s       criminal     history     category

substantially         under-represents            the      seriousness       of         the

                                              7
defendant’s           criminal      history         or        the     likelihood         that   the

defendant will commit other crimes.”                          USSG § 4A1.3(a)(1).

             Blakeney        contends        that        in    deciding       to    depart,     the

district court failed to give due regard to several factors in

reaching        the    departure          decision,           including      the        non-violent

nature     of    his     offense,         the   alleged             disparity      in    treatment

between himself and his coconspirators, his cooperation with the

government, his record of minor offenses, and the misdemeanor-

character       of    his    recidivism.            To    the       contrary,      the     district

court properly considered each of these factors and rejected

them.     The district court found Blakeney repeatedly committed

the serious counterfeiting offense, thereby victimizing multiple

establishments.               The     district           court        also        observed      that

Blakeney’s criminal record was “extraordinary,” and that he was

a “recidivist’s recidivist” who “repeatedly rejected living a

crime-free lifestyle.”               (J.A.-I 114-15).                These observations are

readily supported by appellant’s 16 unscored prior convictions.

A    sentencing         court       may     consider           unscored       convictions        in

determining whether an upward departure is warranted. See United

States v. Myers, 589 F.3d 117, 126 (4th Cir. 2009).

             The district court also found Blakeney had received

lenient sentences on many prior occasions, “[i]ncluding a lack

of      punishment          for     repeated         violations              of     probationary

sentences.”           (J.A.-I 94).           The district court further stated

                                                8
that,      even    were    it     not    to    consider        the     seven      misdemeanor

convictions        and    10     arrests      that     stemmed        from      his    romantic

relationship,          Blakeney      would      “still         would      have     amassed      a

staggering        22   convictions       and    40     arrests       in    17    years    as    an

adult,” including over six years he spent incarcerated.                                  (J.A.-I

95).       The court explained that it was only addressing Blakeney’s

arrests to respond to his objections to the Presentence Report.

The    district        court     correctly          rejected    appellant’s           claim     of

disparate treatment from his accomplices.                           See United States v.

Withers,      100      F.3d     1142,    1149       (4th     Cir.     1996).          Moreover,

Blakeney’s        claim    that    the    district         court    did    not    factor       his

cooperation into its decision to depart is belied by the record. 2

The district court stated, “I have considered your counsel’s

argument      about       your    cooperation          and     I've       taken    that       into

account.       Just punishment includes taking that into account and

I have.”          (J.A. 117).       In view of the foregoing, the district

court’s      decision      to    depart       upward    was     well-supported           by    the

record.

              After       properly       calculating         the      advisory        guideline

range and giving the parties an opportunity to argue for an

       2
        Of note, Blakeney received a three point downward
adjustment to his Guidelines calculation pursuant to USSG
§ 3E1.1: two points for acceptance of responsibility and one
point for assisting authorities in the investigation and
prosecution of his own misconduct.



                                                9
appropriate sentence, a “district judge should then consider all

of the § 3553(a) factors to determine whether they support the

sentence requested by a party.”              Gall, 552 U.S. at 49-50.             “If

he decides that an outside-Guidelines sentence is warranted, he

must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree

of the [departure].”           Id. at 50.          When reviewing an upward

departure,    the    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).      “[A]   major

departure     should     be     supported         by    a       more    significant

justification than a minor one.”              Gall, 552 U.S. at 50.             “If a

court provides an inadequate statement of reasons or relies on

improper factors in imposing a sentence outside the properly

calculated advisory sentencing range, the sentence will be found

unreasonable and vacated.”            Hernandez-Villanueva, 473 F.3d at

123.    Whether a departure is upward or downward, “[t]he farther

the    [sentencing]    court    diverges      from     the    advisory    guideline

range,” the more a reviewing court must “carefully scrutinize

the reasoning offered by the district court in support of the

sentence.”     United States v. Hampton, 441 F.3d 284, 288 (4th

Cir. 2006).

                                        10
               Here,       the    district       court      determined       the     applicable

sentencing range was 37 to 46 months, based on offense level 14

and criminal history category VI.                           It then concluded that an

upward departure to offense level 26 “adequately reflects the

nature, number, and seriousness of Blakeney’s prior convictions

and the likelihood of Blakeney committing other serious crimes.”

(J.A.-I 147).          Coupling criminal history category VI and offense

level     26    yields       a    sentencing          range    of    120     to    150     months

imprisonment.          Blakeney was ultimately sentenced to 120 months,

reflecting an upward departure of roughly 260%. 3

               Explaining its rationale for the upward departure, the

district       court    articulated         the       following     facts:        (1)    Blakeney

“has a deeply troubling history of relentless criminal conduct”

in which he committed crimes for most of his adult life; (2) his

criminal       history       includes       over       29     convictions;         (3)    he    was

convicted       twice       of        larceny    and     seven      times     of    controlled

substance offenses, including felonies; (4) “but for the time

period     limitation            in    [USSG     §]4A1.2(e)         and     the    four     point

limitation       in    [USSG]          section    4A1.1(c),”        appellant’s          criminal

history points would have totaled “an utterly staggering” 33

points;        (5)    on     many       occasions,          Blakeney      received        lenient


     3
        The statute provides for                        a     20-year      maximum       term    of
imprisonment. 18 U.S.C. § 471.



                                                 11
sentences,          “[i]ncluding        a    lack        of     punishment      for        repeated

violations of probationary sentences;” (6) he “squandered the

opportunity”         afforded      to   him        when    his    federal    sentence         on   a

crack     conspiracy            conviction         was        reduced    from    140        months

imprisonment to 60 months imprisonment; (7) he pleaded guilty to

seven charges that stemmed from his relationship with a former

girlfriend, and that on one of those charges Blakeney resisted a

law enforcement officer; and, (8) even if the district court

ignored    the       seven       misdemeanor           convictions,       appellant         “still

would have amassed a staggering 22 convictions and 40 arrests in

17    years      as        an    adult,      over         six    of     which    were        spent

incarcerated.”         (J.A.-I 94-95).

               In addition, the district court considered the fact

that Blakeney, “in light of the entire record,” was a recidivist

for     whom    there       was    “a       near       certain     likelihood         of    future

recidivism.” (J.A.-I 95).                    The district court found specific

deterrence of appellant was “critical in this case” because of

his “extraordinary criminal record,” lack of respect for the

law, and the certainty of recidivism.                          (J.A.-I 116).

               Where       an     upward      departure          from    criminal          history

category       VI     is    warranted,        a        sentencing       court    must       depart

incrementally, explaining the reasons for its departure.                                       See

U.S.S.G. § 4A1.3(a)(4)(B); United States v. Dalton, 477 F.3d

195, 199 (4th Cir. 2007).                   Even so, “Section 4A1.3’s mandate to

                                                  12
depart incrementally does not, of course, require a sentencing

judge to move only one level, or to explain its rejection of

each and every intervening level”.                     Id.     Similarly, a sentencing

court    need        not    “incant       the    specific      language       used    in    the

guidelines, or go through a ritualistic exercise in which it

mechanically discusses each criminal history category or offense

level it rejects en route to the category or offense level that

it    selects.”            Id.     (internal       quotation        marks    and   citations

omitted).       It is enough that the district court employed a well-

reasoned      process       or,     stated      otherwise,      to    have    “extrapolated

from    the     structure          and    methodology          of    the     Guidelines      in

calibrating its upward departures.”                        United States v. Rivera–

Santana, 668 F.3d 95, 104 (4th Cir. 2012).

              In this case, the district court’s determination that

an upward departure to 120 months imprisonment was compelled by

Blakeney’s       criminal         history    and     the   §   3553     factors      is    well-

supported       by    the       record.      The     district       court    considered     the

defendant’s arguments and rejected them.                            Its explanations for

the sentence it imposed were sufficient to justify the extent of

the    departure,          as     described      above.        See     United      States     v.

Whorley, 550 F.3d 326, 339-42 (4th Cir. 2008) (upward departure

33%     above        advisory       guidelines         range        amply     supported      by

defendant’s almost continuous pursuit of criminal conduct and

its increasing risk to the public); United States v. Myers, 589

                                                13
F.3d       117,   126    (4th    Cir.    2010)       (upward    departure       based    on

defendant’s       criminal       history,     including        unscored    convictions,

and recidivism was reasonable); United States v. Evans, 526 F.3d

155,       158,   163-64,       166    (4th    Cir.     2008)     (upward       departure

reflecting more than a 300% deviation from advisory guidelines

range      supported     by     defendant’s        extensive    criminal       history   of

recidivism,        lenient       punishments,         and      substantial       harm    to

victims).

               Even     had   the     sentencing      court    failed     to   utilize    a

proper analysis for the upward departure, any such error would

be harmless because the upward variance based on the § 3553(a)

factors justified the sentence imposed.                        See United States v.

Evans, 526 F.3d 155, 165 (4th Cir. 2008). 4                         See also Rivera–

Santana, 668 F.3d at 104; United States v. Grubbs, 585 F.3d 793,

804 (4th Cir. 2009) (relying on district court’s discussion of

§ 3553(a) factors to affirm sentence as reasonable variance).

               The district court expressly noted that it would have

“impose[d] the same sentence as a variance sentence” for the

reasons explained above, as well as for those noted during the

       4
       As this Court recently observed, “the practical effects of
applying either a departure or a variance are the same.”
Diosdado-Star, 630 F.3d at 365.     See also Evans, 526 F.3d at
164–65.   “[T]he method of deviation from the Guidelines range—
whether by a departure or by varying—is irrelevant so long as at
least one rationale is justified and reasonable.”       Diosdado-
Star, 630 F.3d at 365



                                              14
sentencing hearing concerning section 3553(a).                    See Grubbs, 585

F.3d at 804 (concluding that variance sentence “is procedurally

reasonable [where] the district court adequately explain[s] its

sentence    on    alternative     grounds”       by   reference     to    §   3553(a)

factors).    Our review of the district court’s application of the

§ 3553(a) factors to Blakeney’s circumstances persuades us that

the variant sentence imposed upon him was not unreasonable.                        See

Grubbs, 585 F.3d at 804–05; Gall, 552 U.S. at 51 (in reviewing a

variance for reasonableness, an appellate court “must give due

deference to the district court’s decision that the § 3553(a)

factors,    on    a    whole,   justify    the    extent     of   the    variance”);

United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007);

Evans, 526 F.3d at 160.



                                        III.

            For       the   foregoing     reasons,     the    judgment        of   the

district court is

                                                                           AFFIRMED.




                                          15
GREGORY, Circuit Judge, concurring in the judgment:

            I concur in the result reached by the majority, as it

is the outcome militated by our precedent.               I write separately,

however, to lament on how formalistic and hollow our review of

district court sentencing has become.              While I recognize that

the district court remains in the best position “‘to decide the

issue in question,’” Koon v. United States, 518 U.S. 81, 98–99

(1996)   (quoting   Pierce     v.    Underwood,    487   U.S.    552,    559-560

(1988)),   this   discretion    is    not   without   limits,    and     must    be

curbed   to   achieve   the    time-honored       objectives     of    fair     and

consistent sentencing.         See United States v. Booker, 543 U.S.

220, 263–264 (2005) (noting that, despite tension with the need

to address individual circumstances, substantive review aims to

“avoid     excessive    sentencing       disparities”      and        “iron     out

sentencing differences”).

            As I cautioned in United States v. Evans, 526 F.3d

155, 167 (4th Cir. 2008) (Gregory, J., concurring), “the words

‘abuse of discretion’ cannot be a legal incantation invoked by

appellate courts to dispel meaningful substantive review of a

district court’s sentence.”          Yet, as recited by the majority, to

depart from the guidelines, district court judges “need only

‘set forth enough to satisfy the appellate court that it has

considered the parties’ arguments and has a reasoned basis’ for

its decision.”      Ante at 7 (citing United States v. Diosdado-

                                       16
Star,   630    F.3d      359,    364   (4th     Cir.   2011))       (emphasis   added).

Thus, district court judges can render our review moot by simply

providing     a    formulaic      recitation      of     the   18    U.S.C.    § 3553(a)

factors, as well as reasons for their departure -- even if, for

good reason, we explicitly disagree with them.                        With that said,

I agree that Blakeney’s remarkable criminal history justifies

the district court judge’s decision to depart in the instant

case;   however,         such    an    extensive       departure      from    both   the

sentencing guidelines and the government’s recommendation should

not go unobserved.

              In   the    case    at   hand,     the   district       court    sentenced

Blakeney to ten years’ imprisonment -- despite the Government’s

request for only five years (which was already fourteen months

in excess of the sentencing range’s maximum).                           Arguably, the

district    court’s       reasoning      could    be     extended     to   justify    any

sentence up to the statutory maximum of twenty years.                                Such

uncertainty flies in the face of avoiding sentencing disparities

and the general proposition of fairness.                       As candidly indicated

by   Blakeney’s          counsel       during     oral     argument,         uncertainty

undermines an attorney’s role as advocate, as it encumbers the

ability to adequately prepare clients for sentencing, putting

the attorney at risk of claims for ineffective assistance of

counsel.



                                           17
           Overall, we cannot lose sight that appellate review of

sentencing is becoming “a mere formality, used by busy appellate

judges only to ensure that busy district judges say all the

right things when they explain how they have exercised” their

discretion.   Booker, 543 U.S. at 313 (Scalia, J., dissenting).

Going   forward,   district   courts   must   be   wary   of   departure,

ensuring that non-guideline sentences are “sufficient, but not

greater than necessary” to satisfy the purposes of § 3553(a)(2).

In the same vein, our review must be given teeth to ensure that

the discretion of district court judges –- which is not absolute

–- remains subject to meaningful appellate review.




                                  18
