                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4218


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LESLIE AARON MCKEITHAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00237-D-1)


Submitted:   March 7, 2014                 Decided:   March 21, 2014


Before MOTZ, GREGORY, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Leslie Aaron McKeithan appeals his 120-month sentence

imposed after he pleaded guilty to being a felon in possession

of   a   firearm,   in    violation        of    18    U.S.C.       § 922(g)(1)      (2012).

When     calculating     the    advisory        Guidelines        range,      the    district

court upwardly departed under U.S. Sentencing Guidelines Manual

(“USSG”)     § 4A1.3(a)(1),        p.s.,         and        § 5K2.21,         p.s.   (2012).

McKeithan     argues     that    his   sentence            is   both    procedurally     and

substantively unreasonable.            We affirm.

             We review a sentence, even a departure sentence, for

reasonableness,        applying        a    deferential             abuse-of-discretion

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

doing, we first examine the sentence for “significant procedural

error,” ensuring, among other things, that the district court

did not improperly calculate the advisory Guidelines range, fail

to consider the 18 U.S.C. § 3553(a) factors, select a sentence

based on clearly erroneous facts, or inadequately explain the

chosen sentence.         Id.      Next, when considering the substantive

reasonableness      of    the    sentence,            we    “take      into    account   the

totality of the circumstances.”                  Id.       If the sentence is within

or below the Guidelines range, we presume on appeal that the

sentence is reasonable.            United States v. Yooho Weon, 722 F.3d

583, 590 (4th Cir. 2013).



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             Pursuant      to    USSG    § 4A1.3(a)(1),        p.s.,       a    court     may

upwardly       depart     from     the   Guidelines          range    if        the     court

determines      “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.”                       In addition, under USSG

§ 5K2.21,      p.s.,    “[a]     court   may    depart      upward    to       reflect    the

actual seriousness of the offense based on conduct (1) . . .

underlying a potential charge not pursued in the case as part of

a plea agreement or for any other reason; and (2) that did not

enter into the determination of the applicable guideline range.”

             We conclude that the district court did not commit

procedural error in exercising its discretion to depart upward.

The district court properly concluded under USSG § 4A1.3, p.s.,

that    McKeithan’s         criminal       history         category        substantially

underrepresented the seriousness and violent nature of his past

conduct and the likelihood that he will reoffend.                          Further, the

district court was within its discretion to conclude that two

assaults committed during the course of the charged offense were

not    taken    into     consideration         by    the    Guidelines          range    and

therefore warranted a departure under USSG § 5K2.21, p.s., to

reflect the actual seriousness of the offense.                         Moreover, even

if the district court did commit procedural error, we would find

such error harmless because the district court made clear that

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it would impose the same sentence as a variance.                            See United

States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009).

            Lastly,     the    district   court       appropriately         framed      its

sentence with the relevant § 3553(a) factors.                        A review of the

record indicates that the court thoroughly examined the nature

and    circumstances     of     McKeithan’s         offense        and   his    personal

history and characteristics.              Highlighting McKeithan’s violent

criminal history and his dismal record on probation, as well as

the    violent    offense      conduct,       the    court     determined        that     a

substantial sentence was necessary to incapacitate, deter, and

provide just punishment to McKeithan.                      Based on the district

court’s thorough explanation of its sentence, we conclude that

McKeithan’s sentence is substantively reasonable.

            Accordingly, we affirm the district court’s judgment.

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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