                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-4522


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEPHEN HARDISON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00278-BR-2)


Submitted:   February 24, 2010             Decided:   March 19, 2010


Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Stephen      Hardison        appeals    the     197-month        sentence

imposed after he pled guilty, pursuant to a plea agreement, to

one count of conspiracy to distribute and possess with intent to

distribute fifty grams or more of crack cocaine, 500 grams or

more of cocaine, and a quantity of marijuana, in violation of 21

U.S.C. §§ 846, 841(a)(1) (2006).             We affirm.

           In the presentence report (PSR), the probation officer

recommended a total offense level of twenty-seven and a criminal

history category of VI, which resulted in a sentencing range of

130 to 162 months of imprisonment.                 The PSR also noted that

Hardison’s extensive criminal history might warrant an upward

departure pursuant to U.S. Sentencing Guidelines Manual (USSG)

§ 4A1.3(a) (2008).      Hardison did not object to the PSR.

           Before sentencing, the Government filed a motion for a

downward departure pursuant to USSG § 5K1.1 based on Hardison’s

substantial      assistance.       At    sentencing,       the     district    court

adopted the factual findings and Guidelines calculations in the

PSR,   without    objection.       The    Government      orally    moved     for   an

upward departure on the ground that Hardison’s criminal history

category under-represented the seriousness of his past criminal

conduct   and    the   likelihood    that     he   would   continue     to    commit

crimes.   The district court granted the Government’s motion for

an upward departure and departed upward to offense level thirty-

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four, which increased the sentencing range to 262 to 327 months.

The court then granted the Government’s substantial assistance

motion and departed downward to a sentence of 197 months of

imprisonment.

              On    appeal,    Hardison         first       argues       that    the     district

court imposed a procedurally unreasonable sentence by failing to

consider the factors in 18 U.S.C. § 3553(a) (2006), with the

exception of Hardison’s criminal history, which was considered

only   as     it    related     to    the       Government’s         motion        for    upward

departure.          This court reviews a sentence for reasonableness

under an abuse of discretion standard.                         Gall v. United States,

552    U.S.    38,     51    (2007).            This       review    requires          appellate

consideration         of      both        the        procedural           and      substantive

reasonableness of a sentence.                       Id.     After determining whether

the district court properly calculated the defendant’s advisory

Guidelines range, this court must consider whether the district

court considered the § 3553(a) factors, analyzed any arguments

presented      by     the     parties,         and        sufficiently          explained    the

selected sentence.            Id. at 49-51.                “Regardless of whether the

district      court    imposes       an   above,          below,    or    within-Guidelines

sentence,      it     must    place       on    the        record    an     ‘individualized

assessment’ based on the particular facts of the case before

it.”     United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).

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              Our review of the record leads us to conclude that the

district court did not procedurally err in its determination or

explanation of Hardison’s sentence.                          Hardison argued that “the

history     and     characteristics              of     the       defendant,”            18     U.S.C.

§ 3553(a)(1), did not warrant an upward departure, but supported

a   sentence       at    the     statutory        minimum.              The    district            court

discussed in detail Hardison’s criminal history, the indications

that he would continue to commit crime, and the need to protect

the public from Hardison’s crimes.                          Although the court did not

discuss Hardison’s drug addiction or employment opportunities,

such   omission         was    not   error.           The    district         court       adequately

addressed     the       relevant       §    3553(a)         factors      and       explained         its

sentencing determination in terms specific to Hardison.

              Hardison          also          argues        that        his         sentence          is

substantively unreasonable because the district court based its

decision      to    upwardly         depart       on        the    number          of     his      prior

convictions        rather       than     on     the    seriousness            of    his       criminal

record.       This court reviews the substantive reasonableness of

the    sentence,         “taking       into      account          the    ‘totality            of    the

circumstances, including the extent of any variance from the

Guidelines range.’”              United States v. Pauley, 511 F.3d 468, 473

(4th   Cir.    2007)          (quoting      Gall,      552    U.S.      at     51).           “If   the

district      court       decides          to   impose        a    sentence             outside     the

Guidelines range, it must ensure that its justification supports

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the ‘degree of the variance’; thus, ‘a major departure should be

supported    by    a     more    significant    justification       than     a    minor

one.’”      United States v. Evans, 526 F.3d 155, 161 (4th Cir.

2008) (quoting Gall, 552 U.S. at 50).                  This court “may consider

the extent of the deviation [from the recommended Guidelines

range],    but    must    give    due   deference     to    the   district   court’s

decision that the § 3553(a) factors, as a whole, justify the

extent of the variance.”           Gall, 552 U.S. at 51.           That this court

would have reached a different result in the first instance is

an insufficient reason to reverse the district court’s sentence.

Id.

            A district court may depart upward from the Guidelines

range    under    USSG    §     4A1.3(a)   when      “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).          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).                             “In

determining whether an upward departure from Criminal History

Category VI is warranted, the court should consider that the

nature of the prior offenses rather than simply their number is

                                           5
often    more    indicative        of   the       seriousness      of    the    defendant’s

criminal record.”           USSG § 4A1.3, comment. (n.2(B)).                    In deciding

the extent of a departure in the case of a defendant who is

already    in    criminal         history     category      VI,     “the      court    should

structure       the    departure        by    moving       incrementally            down    the

sentencing table to the next higher offense level in Criminal

History Category VI until it finds a guideline range appropriate

to the case.”         USSG § 4A1.3(a)(4)(B).

            Contrary to Hardison’s argument, the district court’s

explanation reveals that the court considered the nature of his

prior crimes in addition to their number.                         The PSR reveals that

Hardison has a total of twenty-eight misdemeanor and seventy

felony convictions.            Seventeen of the misdemeanor and fifty-five

of the felony convictions received no criminal history points in

the     Guidelines         calculation.           Moreover,       Hardison’s         criminal

history    includes         multiple     instances        in   which      he    received      a

sentence of probation that was later revoked upon his commission

of    additional       crimes.          Finally,         although       the    majority      of

Hardison’s crimes were property-related, many of his convictions

involved    breaking         and    entering,        which     presents        a     risk    of

confrontation         by    the    owner     of    the    property.           The    district

court’s decision to depart was supported by the evidence, and

the extent of the departure was reasonable.



                                              6
           Accordingly,    we   affirm   Hardison’s    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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