                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4390


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JAMES ARTHUR ACKLIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cr-00025-D-1)


Submitted:   February 21, 2014            Decided:   February 27, 2014


Before GREGORY, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James       A.    Acklin    appeals        from     the       forty-six-month

sentence imposed after he pleaded guilty to knowingly failing to

register    as    required      by     the    Sex     Offender        Registration          and

Notification      Act    (SORNA),      in     violation        of    18    U.S.C.      § 2250

(2012).      Acklin argues that his sentence is procedurally and

substantively unreasonable.              Specifically, Acklin contends that

the   district      court      erred     in        departing        upward     under       U.S.

Sentencing       Guidelines      Manual       (USSG)        § 4A1.3       (2012)      without

acknowledging      that      departures       above     criminal          history     VI   are

disfavored and in imposing a sentence that relied too heavily on

the   number      of    his    criminal           convictions        instead     of    their

severity.         Acklin      also     argues        that     the     court     erred        in

calculating his term of supervised release.                         We affirm the term

of imprisonment portion of the sentence, vacate the portion of

the judgment imposing supervised release, and remand for further

consideration of the supervised release term.

            We review a sentence for reasonableness, applying an

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

38, 46 (2007).          The same standard applies whether the sentence

is    “inside,      just      outside,        or     significantly           outside        the

Guidelines range.”            United States v. Rivera-Santana, 668 F.3d

95, 100-01 (4th Cir.) (internal citation and quotation marks

omitted), cert. denied, 133 S. Ct. 274 (2012).                         In reviewing any

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sentence outside the Guidelines range, the appellate court must

give due deference to the sentencing court’s decision because it

has     “flexibility            in    fashioning          a     sentence          outside    of    the

Guidelines range,” and need only “set forth enough to satisfy

the     appellate          court       that     it       has     considered          the     parties’

arguments and has a reasoned basis” for its decision.                                         United

States       v.    Diosdado-Star,            630    F.3d       359,   364     (4th    Cir.     2011).

“[A] major departure should be supported by a more significant

justification than a minor one.”                         Gall, 552 U.S. at 50.

                  The    court       first    reviews          for    significant          procedural

error, and if the sentence is free from such error, it then

considers substantive reasonableness.                                Id. at 51.            Procedural

error    includes           improperly         calculating            the    Guidelines        range,

treating the Guidelines range as mandatory, failing to consider

the     18        U.S.C.     § 3553(a)         (2012)          factors,       and     failing       to

adequately explain the selected sentence.                                   Id.     To adequately

explain       the         sentence,      the         district         court        must     make    an

“individualized assessment” by applying the relevant § 3553(a)

factors to the case’s specific circumstances.                                 United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                                   The individualized

assessment need not be elaborate or lengthy, but it must be

adequate          to    allow    meaningful         appellate         review.        Id.     at    330.

Substantive             reasonableness         is    determined         by        considering      the

totality of the circumstances, and if the sentence is within the

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properly-calculated           Guidelines       range,     this   court     applies     a

presumption of reasonableness.                 United States v. Strieper, 666

F.3d 288, 295 (4th Cir. 2012).

            Pursuant to USSG § 4A1.3, a district court may depart

upward     from    an     applicable       Guidelines       range    if     “reliable

information       indicates     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.”                    USSG § 4A1.3(a)(1), p.s.

Upward departures from the highest criminal history category are

appropriate “[i]n the case of an egregious, serious criminal

record in which even the guideline range for Criminal History

Category VI is not adequate to reflect the seriousness of the

defendant’s criminal history.”             USSG § 4A1.3, p.s., cmt. n.2(b).

            Here,       the   district     court     explained      at    length     its

reasons for the departure.                It emphasized Acklin’s extensive

criminal history, encompassing sixty-two convictions, several of

which were serious offenses, including sexual assault, burglary

and conspiracy to obtain property by false pretenses.                       The court

observed that Acklin’s criminal history was “about as robust as

one can find in terms of just the volume and the length,” thus

concluding,       contrary      to     Acklin’s      argument,      that     Acklin’s

criminal    history       was    extraordinary.            The   court     imposed    a

sentence nine months above the Guidelines range after following

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our guidance on formulating the departure.                          We conclude that the

sentence was procedurally reasonable.

              Turning       to    the    substantive          reasonableness       of    the

sentence, Acklin argues that the extent of the district court’s

departure      substantially            overstated          the     seriousness    of    his

criminal record.           He argues that the court neglected to consider

the degree to which his admittedly extensive criminal record has

diminished in the last two decades.                          Further, Acklin contends

that    although      he     had    fifty-five          unscored       convictions,      the

majority      were     for       misdemeanor          and     traffic     offenses,      and

therefore did not merit an upward departure of approximately

thirty percent.         In sum, Acklin contends that the district court

placed too much weight on the number of convictions instead of

their severity.            See United States v. Cash, 983 F.2d 558 (4th

Cir. 1992) (“[T]he sentencing court should consider not only the

number of prior offenses committed by a defendant but also their

seriousness.”).             Our    review        of    the        sentencing     transcript

convinces us, however, that the district court considered not

just    the   number       of    Acklin’s    lifetime             convictions    but    their

individual severity and cumulative effect.

              The court departed upward from 30 to 37 months to a

range of 46 to 57 months and imposed a sentence of 46 months.

In     imposing      the    sentence,       the       court        “considered    all    the

arguments” of counsel, Acklin’s statement, and the 18 U.S.C.

                                             5
§ 3553(a)      factors.         The       court         also   noted    that    it   considered

Acklin’s      explanation           at    the       guilty     plea     hearing      as   to    the

circumstances surrounding his failure to register and took into

account       Acklin’s         prior          compliance         with     registration              in

Connecticut.          The court balanced Acklin’s circumstances and the

age of his many convictions with its concern whether Acklin’s

criminal behaviors would come to an end.                               The court concluded

that there was a need to deter and incapacitate Acklin, and to

“provide just punishment, to take into account the seriousness

of   [Acklin’s]        history       and        characteristics,         the    good      and   the

bad.”        Under the circumstances, we conclude that the district

court’s      decision     to    depart           under     § 4A1.3      and    its   extent         of

departure       was     factually             supported        and     that    the     resulting

sentence was substantively reasonable.

              Finally, Acklin argues that the district court erred

in calculating the Guidelines range for his supervised release

term and in imposing a ten-year term.                            The Government responds

that    we    should    remand       on       the    supervised        release    issue        only.

“[W]hoever      is     required          to   register         under   [SORNA     and]     .    .    .

knowingly fails to register or update a registration as required

by [SORNA,] shall be imprisoned for up to 10 years, fined, or be

sentenced       to     both     a        fine     and      imprisonment.”            18    U.S.C.

§ 2250(a)(3).         For offenders under 18 U.S.C. § 2250, the term of

supervised release “is any term of years not less than 5, or

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life.”    18 U.S.C. § 3583(k) (2012).                Under USSG § 5D1.2(b)(2),

the minimum supervised release term is five years, but if the

sentence is a sex offense, “the guideline range for a term of

supervised release is five years to life.”

            The Defendant argues, and the Government agrees, that

the failure to register offense is not a sex offense; therefore,

the   supervised      release    Guidelines         range       does    not     include    a

maximum of life, and does not create a range of five years to

life as is the case with sex offenses.                          The PSR indicated a

supervised release Guidelines range of five years to life based

on USSG § 5D1.2(b)(2) and 18 U.S.C. § 3583(k).                             The district

court imposed a ten-year term without discussion.                         Subsequent to

the sentencing hearing, the Department of Justice (DOJ) issued

guidance and established the Government’s position on supervised

release     terms     for    defendants       convicted         of     SORNA     offenses.

According     to     the    Government,       the    memo       states     (1)    that     a

conviction    for     failure   to     register      as     a    sex    offender       under

§ 2250(a)     does    not    qualify    as     a    “sex        offense”       under    USSG

§ 5D1.2(b); and (2) the advisory supervised release range for a

§ 2250(a) conviction is a single point: the statutory minimum of

five years.

            Because the district court entered judgment before the

DOJ memo issued, the case may benefit from the district court

reconsidering the supervised release portion of the sentence.

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Accordingly,    we    affirm     the   term    of   imprisonment,        vacate   the

portion of the sentence imposing supervised release, and remand

for   reconsideration       in   light    of    the      DOJ’s    recently     issued

position regarding the advisory supervised release range.                         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 IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




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