                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4292


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOMARIO ANTIONE HAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00091-FL-1)


Submitted:   December 17, 2013            Decided:   December 26, 2013


Before NIEMEYER, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Joshua L. Rogers, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jomario     Antione      Hand   appeals    the   forty-one    month

sentence imposed after he pled guilty, without a plea agreement,

to one count of conspiracy to possess, store, barter, sell, or

dispose of a stolen firearm, in violation of 18 U.S.C. § 371

(2012), and one count of possession of a stolen firearm, in

violation of 18 U.S.C. § 922(j) (2012).              We affirm.

            On appeal, Hand contends that the court misapplied the

Sentencing Guidelines by relying on relevant conduct to upwardly

depart for under-representation of criminal history, pursuant to

U.S. Sentencing Guidelines Manual (USSG) § 4A1.3 (2012).                     He

asserts that criminal history and relevant conduct are mutually

exclusive and that a district court “is prohibited from using

relevant conduct to compute the criminal history score and to

upwardly    depart      based   on     under-representation        of   criminal

history.”      (Appellant’s Br. at 11).              The Government responds

that, because Hand did not assert in the district court the

argument he raises on appeal, plain error review applies.                 Under

that   standard,     the    district    court   did    not   err   in   upwardly

departing, and even if the court committed procedural error, the

error was harmless in light of the court’s alternative variance

explanation.       In      reply,    Hand   argues    that   he    sufficiently

preserved his objection to the departure, and that the court’s



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post    hoc       variance     discussion          does       not   rescue      its     erroneous

departure sentence.

              This      court     reviews       a      sentence        for     procedural         and

substantive          reasonableness          under          an      abuse      of     discretion

standard.          Gall v. United States, 552 U.S. 38, 51 (2007).                                 The

same    standard        applies    whether         the      sentence     is     “inside,         just

outside, or significantly outside the Guidelines range.”                                    United

States       v.    Rivera-Santana,           668      F.3d       95,    100-01      (4th        Cir.)

(internal citation and quotation marks omitted), cert. denied,

133     S.        Ct.    274      (2012).                In      determining          procedural

reasonableness, this court considers whether the district court

properly calculated the defendant’s advisory Guidelines range,

gave    the       parties    an   opportunity          to     argue     for    an   appropriate

sentence,         considered      the   18    U.S.C.          § 3553(a)       (2012)     factors,

selected      a     sentence      based      on       clearly       erroneous       facts,        and

sufficiently explained the selected sentence.                               Gall, 552 U.S. at

49-51.       In reviewing any sentence outside the Guidelines range,

the appellate court must give due deference to the sentencing

court’s decision because it 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 Gall, 552 U.S. at 56).

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            In      this    case,       we   conclude       that    Hand       sufficiently

preserved the claim he asserts on appeal by stating that he

objected to the upward departure.                      See United States v. Lynn,

592 F.3d 572, 578-79 (4th Cir. 2010) (“When the sentencing court

has already heard argument and allocution from the parties and

weighed     the     relevant        § 3553(a)       factors        before       pronouncing

sentence,      we   see    no     benefit     in    requiring        the    defendant      to

protest further.”).

            Section        4A1.3     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.”                        USSG § 4A1.3(a)(1), p.s.

This   court      has    stated     that     “[s]ection       4A1.3      was    drafted    in

classic catch-all terms for the unusual but serious situation

where the criminal history category does not adequately reflect

past   criminal         conduct    or    predict       future      criminal      behavior.”

United States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003).

            Hand        argues      that     the       district       court      erred     in

considering       relevant        conduct    as    a     basis     for   its     departure,

citing three cases from other circuits as support.                             We conclude

that these cases are distinguishable, as the conduct considered

by the sentencing courts in those cases was used to determine

the defendant’s offense level and cited by the court as a basis

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for an upward departure.          In this case, there is no indication

in the record that conduct underlying Hand’s convictions for

breaking and entering was used to determine his offense level.

            We   also   conclude      that   the    district     court    correctly

considered the full scope of Hand’s prior criminal conduct in

determining whether to depart under § 4A1.3.                     “In determining

the sentence to impose within the guideline range, or whether a

departure     from   the   guidelines        is    warranted,    the     court   may

consider,    without    limitation,      any      information    concerning      the

background,      character,     and    conduct     of   the   defendant,     unless

otherwise prohibited by law.”           USSG § 1B1.4.         The district court

did not err in upwardly departing.

            Accordingly, we affirm Hand’s sentence.                     We dispense

with oral argument because the facts and legal contentions are

adequately    presented    in    the    materials       before   this    court   and

argument would not aid the decisional process.

                                                                           AFFIRMED




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