                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4840



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALLEN VAN WILSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00258-WLO)


Submitted:   January 29, 2007               Decided:   March 5, 2007


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Allen       Van   Wilson      pled    guilty,    pursuant     to    a    plea

agreement, to one count of possession of a destructive device made

without   authorization       or    approval      in    violation   of    26    U.S.C.

§§ 5861(c) & 5871 (2000).                 On appeal, Wilson challenges his

sentence on three grounds.               He contends that: (1) the district

court used the wrong standard in fashioning his sentence; (2) the

district court erred in declining to grant his motion for a

downward departure based on his intent to help the U.S. military;

and (3) his sentence is unreasonable because it is a custodial,

rather than a non-custodial, sentence.                 Because the district court

fully complied with its procedural obligations in imposing the

sentence and Wilson has not met his burden of demonstrating that

his sentence is unreasonable, we affirm.

      Wilson’s guilty plea was based on his construction of hand

grenades at his home.            Wilson had not registered his explosive

devices with the Secretary of the Treasury, paid tax on their

manufacture or obtained approval to register the explosives.                        See

26    U.S.C.    §     5822   (2000)      (approval,       registration        and   tax

requirements).        At sentencing, Wilson acknowledged that he knew it

was   illegal    to    develop     the    devices      without   registration        and

approval, but hoped that once he perfected the design, he would

still be able to secure a patent, produce and sell the weapons to




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the   military   to   further   the   war   effort   in    Iraq.    Wilson’s

Guidelines range was 37 to 46 months of imprisonment.

           Wilson requested a downward departure and a non-custodial

sentence   based   on   two   factors   identified    in   U.S.    Sentencing

Guidelines Manual (“USSG”), lesser harms, § 5K2.11, and diminished

capacity, § 5K2.13. The court imposed a downward variance sentence

of 30 months’ imprisonment based on the nature and circumstances of

the offense and the history and characteristics of the defendant.

18 U.S.C.A. § 3553(a)(1) (West 2000 & Supp. 2006).                 The court

identified several factors that it concluded justified a sentence

outside the Guidelines range: (1) the likelihood of recidivism was

minimal; (2) the defendant’s family obligations and his wife’s

mental condition; (3) the defendant’s mental condition; and (4) a

30-month sentence would be sufficient deterrence.

           In imposing a sentence after Booker,1 the district court

must first correctly determine, after making appropriate findings

of fact, the applicable Guidelines range.            See United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005).           Next, the court must

“determine whether a sentence within that range . . . serves the

factors set forth in § 3553(a) and, if not, select a sentence

[within statutory limits] that does serve those factors.”             United

States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.

Ct. 2309 (2006).      The district court must articulate the reasons


      1
       United States v. Booker, 543 U.S. 220 (2005).

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for the sentence imposed, particularly explaining any departure or

variance from the Guidelines range.             See 18 U.S.C.A. § 3553(c)

(West Supp. 2006); Hughes, 401 F.3d at 546 & n.5.                 The explanation

of a variance sentence must be tied to the factors set forth in

§ 3553(a) and must be accompanied by findings of fact as necessary.

See Green, 436 F.3d at 455-56.

           This   court   reviews    the     sentence      for    reasonableness,

considering “the extent to which the sentence . . . comports with

the various, and sometimes competing, goals of § 3553(a).”                    United

States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126

S. Ct. 2054 (2006).     When we review a sentence outside the advisory

Guidelines   range--whether     as    a    product    of    a    departure     or   a

variance--we consider whether the district 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 Guidelines

range.    See id. at 433-34 (variance sentence); United States v.

Hairston, 96 F.3d 102, 106 (4th Cir. 1996) (departure sentence).

           Wilson contends that the district court used an incorrect

standard when it fashioned a sentence based on “reasonableness”

rather than a sentence “sufficient, but not greater than necessary”

to   accomplish   the   goals   of   §    3553(a).2        He    cites   to   United

States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006), in which


      2
      Specifically the district court stated at sentencing that it
found a 30-month sentence to be a “reasonable sentence for the
public and for Mr. Wilson himself.”

                                     - 4 -
this court recited the reasonableness standard.             However, this

court did not suggest in Davenport that a district court may not

use the term “reasonable” in describing a defendant’s sentence.

Nor does Davenport stand for the proposition that in order to

withstand appellate review, a district court must specifically

articulate the language of the statute “sufficient, but not greater

than necessary.” Wilson’s argument is one of semantics and because

the district court followed the appropriate procedure in imposing

the sentence, considered the relevant factors, and adequately

explained its reasoning, we reject it.3

          Wilson also challenges the court’s decision denying his

motion for a downward departure based on USSG § 5K2.11 (lesser

harms).   He claims the court’s refusal to depart was based on a

mistaken belief that it lacked authority to do so.                 While a

district court’s mistaken view that it lacked the authority to

depart may constitute reversible error, see United States v.

Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990), our review of the

sentencing   proceeding   confirms   the   integrity   of    the   court’s

reasoning.

          The district court fully considered Wilson’s motion for

a downward departure based on the argument that his patriotic


     3
      Wilson also argues that this court’s presumption of
reasonableness to sentences within the Guidelines range is
unconstitutional. In view of the fact that Wilson’s sentence is
below the Guidelines range, this argument affords him no benefit.


                                - 5 -
motives       warranted   a   reduced     sentence,   but   determined    that,

regardless of Wilson’s motives, the interest of the public in

punishing and deterring the type of dangerous illegal conduct

Wilson    had    committed    was   not   diminished.       This    analysis    is

consistent with USSG § 5K2.11. p.s., which explains that while a

departure on the basis of lesser harms may be appropriate where a

defendant commits a crime “in order to avoid a perceived greater

harm,”    a    sentencing     reduction    is   inappropriate      “[w]here    the

interest in punishment or deterrence is not reduced.”

               USSG § 5K2.11 p.s., also permits a reduced sentence if

the conduct does not “cause or threaten the harm or evil sought to

be prevented by the law proscribing the offense at issue.”                     The

policy statement cites, as an example, a case in which a war

veteran possesses a grenade as a “trophy.”                   Arguing for the

application of this exception, Wilson relies on United States v.

White Buffalo, 10 F.3d 575, 576-77 (8th Cir. 1993), in which the

defendant was convicted of possession of a sawed-off shotgun and a

downward departure was affirmed. In that case, the defendant lived

in a rural area and shortened a rifle to enable him to crawl under

a chicken shack to dispose of predators.

              We conclude, however, that Wilson’s conduct did not

warrant application of the portion of USSG § 5K2.11 which the court

relied on in White Buffalo.         Here, although Wilson may have hoped

to assist the government and military, his conduct still caused


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exactly the harm, the unregulated possession and manufacture of

explosives, that the statute seeks to prevent.                 As the district

court    determined,   Wilson’s   motives    do    not    diminish      society’s

interest in punishment and deterrence of the conduct in which he

engaged.

            Finally, Wilson argues that his sentence is unreasonable

because a non-custodial sentence would be sufficient to serve the

purposes of sentencing.        He contends that the court failed to

properly consider the “circumstances of the offense and the history

and     characteristics   of   the     defendant”     in       accordance     with

§ 3553(a)(1), and failed to accord sufficient weight to his mental

health history.     However, this factor is the stated basis for the

court’s imposition of a non-Guidelines sentence, and one of the

factors    listed   as    justification      for    the    sentence      is    the

“defendant’s    mental    condition.”        Thus,       the    court   properly

considered and relied on the relevant factors under § 3553(a) in

imposing the sentence and Wilson has not established that the

sentence is unreasonable.

            Accordingly, we affirm Wilson’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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