                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4747


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

HENRY JUNIOR MCNAIR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00325-F-1)


Submitted:    December 28, 2009             Decided:   January 28, 2010


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

             Henry     Junior     McNair     appeals       his     conviction        on    one

count of possession of a firearm after having been convicted of

a crime punishable by more than one year of imprisonment, in

violation of 18 U.S.C. § 922(g) (2006), and his forty-one month

sentence.     We affirm.

             On     appeal,   McNair       first    argues       that    his      conviction

must be vacated and remanded for a new trial in light of the

Supreme    Court’s     ruling      in    Arizona     v.    Gant,    129      S.    Ct.    1710

(2009),      because    the       search    of     his     vehicle        and     resultant

discovery of the handgun were illegal.                       In Gant, the Supreme

Court held that a search of a vehicle incident to the arrest of

a   recent    occupant       is   justified        “only    when       the   arrestee       is

unsecured      and     within      reaching        distance       of     the      passenger

compartment at the time of the search” or when “it is reasonable

to believe evidence relevant to the crime of arrest might be

found in the vehicle.”                  Gant, 129 S. Ct. at 1719 (internal

quotation marks omitted).

             The Government responds that McNair waived this claim

by failing to file a motion to suppress in the district court,

as required by Fed. R. Crim. P. 12(b)(3)(C).                            Rule 12(b)(3)(C)

requires that a motion to suppress evidence must be made before

trial.       Rule    12(e)    states       that    “[a]    party       waives      any    Rule

12(b)(3)     defense,     objection,        or     request       not     raised     by    the

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deadline the court sets under Rule 12(c) or by any extension the

court   provides.”     McNair   does      not       dispute     the    Government’s

assertion that he did not file a motion to suppress the handgun,

and the district court docket does not indicate that such a

motion was filed.     As the Government correctly notes, this court

has previously enforced the waiver in Rule 12(e).                     United States

v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008); United States v.

Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997); United States v.

Ricco, 52 F.3d 58, 62 (4th Cir. 1995).                   We conclude that McNair

has waived this claim by failing to move in the district court

to suppress the handgun.

            McNair next argues that the district court imposed an

unreasonable sentence by upwardly departing one criminal history

category because McNair’s criminal history category of IV under-

represented his prior criminal conduct.                    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   then

consider whether the district court considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

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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).                             Finally 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, 128 S. Ct. at 597).

               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).

“Section 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 a

defendant’s criminal history is underrepresented, a court may

consider an outdated conviction that was not taken into account

in    calculating       the       criminal      history    score,       but    only    if   the

outdated       conviction         involves      similar,       or    serious     dissimilar,

                                                4
criminal conduct.        See USSG § 4A1.2, cmt. (n.8); United States

v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992).                         “If the district

court decides to impose a sentence outside the Guidelines range,

it must ensure that its justification supports 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, 128 S. Ct. at 597).

           Here,     McNair        does     not        challenge       the     procedural

reasonableness     of   the    sentence;         he    does    not    allege    that   the

district court erred in its calculation of the Guidelines range,

failed to adequately explain its sentence, or failed to apply

the § 3553(a) factors.             Instead, McNair attacks the substantive

reasonableness of the sentence, contending that the recommended

Guidelines range adequately accounts for his criminal history

and his addictions.        When reviewing substantive reasonableness,

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    insufficient            reason    to     reverse   the

district court’s sentence.            Id.       Our review of the record leads



                                            5
us to conclude that the district court’s departure was supported

by the evidence and that the resulting sentence was reasonable.

            Accordingly,      we   affirm    McNair’s         conviction    and

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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