                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4833


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAVID EDWARD BOLAND,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:07-cr-00261-RJC-1)


Submitted:   February 24, 2010            Decided:   March 19, 2010


Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Harold M. Vaught, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               David Edward Boland pled guilty to receiving visual

depictions of a minor engaging in sexually explicit conduct, 18

U.S.C. § 2252(a), (b)(1) (2006) (Count One), and possession of

one or more books, magazines, periodicals, films, video tapes or

other matter containing any visual depiction of a minor engaging

in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2)

(2006).        The district court granted the Government’s motion for

upward     departures       and       sentenced        Boland     to        234     months’

imprisonment and a life-term of supervised release.                          Counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    stating      that     in   his    view,     there    are    no    meritorious

issues for appeal, but questioning whether Boland’s sentence was

legally imposed.          Boland has filed a pro se supplemental brief.

The Government has not filed a brief.                  We affirm.

               We review for reasonableness 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);    United          States   v.

Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476 (2008).            This review requires appellate consideration of

both     the     procedural      and     substantive         reasonableness           of   a

sentence.       Gall, 552 U.S. at 46.             After determining whether the

district       court    properly      calculated       the     defendant’s         advisory

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guidelines range, we must then decide 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.             Id. at 49-50.            In imposing its sentence,

the district court 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,      we     review     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) (internal quotation marks and citation omitted).

              To    determine      whether       the    district      court       abused    its

discretion in imposing Boland’s departure sentence, 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.”                                 United

States   v.      Hernandez-Villanueva,            473    F.3d       118,    123   (4th     Cir.

2007).      We      will    find   a   sentence        to    be    unreasonable      if    the

sentencing “court provides an inadequate statement of reasons or

relies on improper factors in imposing a sentence outside the

properly calculated advisory sentencing range.”                            Id.

              In     this    case,     the   district             court’s    sentence      was

procedurally reasonable.               The district court properly adopted

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the guidelines sentence calculation in the presentence report,

which the parties did not dispute.                     However, as the district

court stated on the record, the guidelines calculation did not

take   into     account    many       aspects     of   Boland’s       conduct.      The

district court listened to the parties’ arguments at length and

ultimately      adequately       stated     its    reasons      for    granting     the

Government’s motion for upward departures and in imposing a 234-

month sentence.

            Similarly,          Boland’s        sentence       was      substantively

reasonable.      The district court explained that Boland’s criminal

history     category      of     II   substantially          under-represented      the

seriousness of his past criminal conduct and the likelihood he

will commit other crimes.               Boland admitted that shortly after

being paroled on a ten-year federal child pornography sentence,

he returned to the same criminal conduct.                      Furthermore, Boland

stated that he did not believe his conduct was wrong.                       The court

therefore     departed     one    criminal      history      category.      See     U.S.

Sentencing Guidelines Manual § 4A1.3(a) (2007) (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 . . . .”).



                                           4
            Additionally, the district court found that the length

and quantity of the videos warranted an upward departure under

USSG § 2G2.2.      The court found that thirty percent of Boland’s

collection    of   videos    was    videos   longer    than   five   minutes    in

length.     See USSG § 2G2.2 & cmt. n.4(B)(ii) (authorizing upward

departure if length of recording is substantially more than five

minutes).     The court considered a one-level departure; however,

given the gravity of the criminal conduct, the court departed

two levels, noting the staggering amount of lengthy videos, the

sadistic and masochistic nature of the series, and the repeated

victimization depicted.           Furthermore, the court found the number

of   images    possessed     by    Boland    greatly   exceeded      the   number

required for a guideline enhancement under USSG § 2G2.2(b)(7)(D)

(imposing maximum enhancement of five levels for six hundred

images).      The court found the sheer quantity of videos as an

encouraged     basis   for    departure.        See    USSG   § 2G2.2      &   cmt.

n.4(B)(i) (“If the number of images under represents the number

of minors depicted, an upward departure may be warranted.”).

Although the district court considered a one-level increase, it

did not believe it was adequate to capture the gravity of the

criminal conduct.       The court therefore departed two levels on

this basis, finding Boland’s possession of 854,992 images was

not adequately taken into consideration by the guidelines.                      See

USSG § 5K2.0(a)(3) (departures based on circumstances present to

                                        5
a degree not adequately taken into consideration in determining

the guidelines range).

             In    considering          the       § 3553(a)       factors,     the     district

court found that the children, including infants, in the videos

were subject to extensive and extended abuse beyond what was

typical in other cases handled by the court and contemplated in

the guidelines.           The court also cited the nature and quantity of

the images.        After finding that Boland posed a serious risk of

further crimes, the court stated that the primary purpose of the

sentence   was      to     protect       the       public     from     further     crimes     by

Boland.    The court explained that the terms and conditions of

supervised release were insufficient to protect the public and

that “its protective function is best served by enhancing the

sentence.”         After     establishing               a   newly     calculated       advisory

guidelines        range    of     188        to     235     months’     imprisonment,        the

district court deemed a sentence of 234 months appropriate in

this case.

          Given     the     district         court’s        meaningful    articulation        of

its   consideration         of    the    § 3553(a)           factors,    and     its   careful

consideration        of      reasons          warranting            departure      from      the

guidelines        range,         we     find           Boland’s       departure        sentence

reasonable.        In accordance with Anders, we have reviewed the

record in this case and have found no meritorious issues for

appeal.       We     further          find        Boland’s    claims     in     his    pro    se

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supplemental       brief    without    merit.      We     therefore   affirm   the

district court’s judgment.             This court requires that counsel

inform Boland, in writing, of the right to petition the Supreme

Court   of   the    United    States     for    further    review.     If   Boland

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation.                  Counsel’s

motion must state that a copy thereof was served on Boland.                    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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