                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4752


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES FULTON MCKOY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:15-cr-00015-D-1)


Submitted:   October 18, 2016             Decided:   November 9, 2016


Before KING, KEENAN, and THACKER, 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Affirmed by unpublished per curiam opinion.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.   John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Fulton McKoy appeals the 120-month sentence imposed

following his guilty plea to mailing bomb threats, in violation

of 18 U.S.C. § 844(e) (2012).                   On appeal, McKoy challenges the

substantive        reasonableness         of    the     upward     departure      sentence

imposed      by    the    district    court        pursuant        to   U.S.   Sentencing

Guidelines Manual § 4A1.3, p.s. (2015).                      We affirm.

       We “review all sentences — whether inside, just outside, or

significantly outside the Guidelines range — under a deferential

abuse-of-discretion standard.”                  Gall v. United States, 552 U.S.

38, 41 (2007).           Under this standard, a sentence is reviewed for

both procedural and substantive reasonableness.                          Id. at 51.      In

the present case, McKoy does not assert that the district court

committed procedural error.                    We therefore review the court’s

decision only for substantive reasonableness under the totality

of the circumstances.            United States v. Howard, 773 F.3d 519,

528 (4th Cir. 2015) (internal quotation marks omitted).                              “When

reviewing a departure, we consider whether the sentencing 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       sentencing   range.”          Id.      at   529   (internal    quotation

marks omitted).           “[W]e must defer to the trial court and can

reverse      a    sentence    only   if    it      is   unreasonable,      even    if   the

sentence would not have been the choice of the appellate court.”

                                               2
United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013)

(internal quotation marks omitted); see Howard, 773 F.3d at 531

(same).

     We    conclude       that     the    district       court     did    not    abuse    its

discretion        in     departing        from   McKoy’s         advisory        Sentencing

Guidelines        range     and      imposing        a     term     of      120     months’

imprisonment.           “A court may base a Guidelines § 4A1.3 upward

departure    on     a    defendant’s       prior     convictions,         even    if   those

convictions are too old to be counted in the calculation of the

Guidelines range under Guidelines § 4A1.2(e).”                           United States v.

McCoy, 804 F.3d 349, 352 (4th Cir. 2015).                          Here, the district

court     concluded       that     considering       those       convictions,       McKoy’s

lengthy criminal history, the lenient sentences he received, his

failure to modify his behavior, and the conduct underlying the

instant offense was necessary to better reflect McKoy’s criminal

history.     See id.

     The district court also reasonably applied the relevant 18

U.S.C. § 3553(a) (2012) factors.                   The district court considered

McKoy’s criminal history in concluding that an above-Guidelines

sentence    was        necessary    to     promote       respect    for     the    law    and

protect     the    public.          See     18   U.S.C.      § 3553(a)(2)(A),            (C).

Furthermore,       the     district        court     reasonably          concluded       that

McKoy’s extensive criminal history did not adequately deter him

from committing the instant offense and, thus, that a lengthier

                                             3
sentence was necessary to afford adequate deterrence.              See id.

§ 3553(a)(2)(B); see also United States v. Montes-Pineda, 445

F.3d 375, 381 (4th Cir. 2006) (“[A] shorter prison term was

inappropriate for a defendant who had repeatedly committed a

serious offense and who had already proven immune to other means

of deterrence.”).     We therefore hold that the 120-month 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     before    this   court    and

argument would not aid the decisional process.

                                                                   AFFIRMED




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