                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4808



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARIUS ABDULE WILLIAMS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (5:05-cr-00254-FL)


Submitted:   December 3, 2007             Decided:   January 7, 2008


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Darius Abdule Williams appeals his1 74-month sentence for

conspiring in a check counterfeiting scheme, in violation of 18

U.S.C. § 371 (2000), aiding and abetting a check counterfeiting

scheme, in violation of 18 U.S.C. § 513(a) (2000), and using false

identification to obtain property by false pretenses, in violation

of 18 U.S.C. § 1028(a)(7) (2000).                Williams contends that his

sentence   was    unreasonable         and   that     prosecutorial      misconduct

interfered with his counsel’s effectiveness.

           We    review    the    sentence      to    determine    whether     it   is

reasonable, applying an abuse of discretion standard.                        Gall v.

United States, 552 U.S. ___, ___, 2007 WL 4292116 *7 (U.S. Dec. 10,

2007) (No. 06-7949).        After United States v. Booker, 543 U.S. 220

(2005), a district court is no longer bound by the range prescribed

by the sentencing guidelines.                A district court’s decision to

depart from the advisory guidelines is reviewed for abuse of

discretion,     based    upon    the   factors       set   forth   in   18   U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2007).              Gall, 522 U.S. ___, ___ 2007

WL 4292116 *12.         In reviewing a sentence outside the guidelines

range, this court considers “the extent of the deviation, [and]



     1
      We note that Williams is a male-to-female transgendered
individual who has undergone hormone therapy but not gender-
transformative surgery.   The Government consistently refers to
Williams by his birth gender; Williams consistently refers to
herself by her perceived gender. For the sake of consistency, we
refer to Williams by his birth gender in this opinion.

                                        - 2 -
must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.”

Id.     A   sentence       is    unreasonable      if   the   “court   provides    an

inadequate statement of reasons or relies on improper factors in

imposing      a    sentence     outside   the     properly    calculated   advisory

sentence range.”          United States v. Hernandez-Villanueva, 473 F.3d

118, 123 (4th Cir. 2007) (applying rule in context of variance

sentence).        “The district court need not discuss each factor in §

3553(a) in checklist fashion; it is enough to calculate the range

accurately and explain why (if the sentence lies outside it) this

defendant deserves more or less.”                United States v. Moreland, 437

F.3d   424,       432   (4th    Cir.   2006)    (citation     and   internal   quotes

omitted) (variance sentence).

       Relying on U. S. Sentencing Guidelines Manual (USSG) § 4A1.3

(2006), the district court imposed a sentence of 74 months.                      This

is 17 months, or thirty percent, above the top of the pre-departure

advisory range.          According to USSG § 4A1.3, a district court may

depart upward from an applicable guidelines range if “reliable

information indicates that the criminal history category does not

adequately reflect the seriousness of the defendant’s past criminal

conduct or the likelihood that the defendant will commit other

crimes.”      USSG § 4A1.3.        The guideline further directs that “[i]n

a case in which the court determines that the extent and nature of

the defendant’s criminal history, taken together, are sufficient to


                                          - 3 -
warrant an upward departure from Criminal History Category VI, the

court should structure the departure by moving incrementally down

the sentencing table to the next higher offense level in Criminal

History Category VI until it finds a guideline range appropriate to

the case.”   USSG § 4A1.3(a)(4)(B).

          Williams   contends   that    the   district   court’s   upward

departure was unreasonable because his criminal history consists

mostly of minor offenses, other than his most recent state court

convictions, which are for conduct that comprises part of the same

scheme as the offenses charged in this case.      Williams also argues

that the departure was unreasonable because he did not receive

sufficient consideration for his guilty plea and acceptance of

responsibility.2 Williams contends that the district court did not

properly balance the factors in § 3553(a) and, instead, focused

almost exclusively on his criminal history.       Williams argues that

the district court overemphasized the crimes he committed while he

was using crack cocaine and suffering from mental health problems,

while ignoring the probability that he will overcome his substance

abuse and mental health issues through treatment while he is

incarcerated.

          The   district   court   correctly     found   that   many   of

Williams’s prior convictions were for offenses of a similar nature


     2
      Williams received a three-level downward adjustment for
acceptance of responsibility, the greatest adjustment provided in
USSG § 3E1.1

                                - 4 -
to those involved in this case, and that he has far more prior

convictions    than   necessary   to   place   him   in   Criminal    History

Category VI, indicating that a departure was warranted, based upon

his history, because he is likely to commit other crimes in the

future.     Although many of Williams’s prior convictions were for

minor offenses, the district court found that the seriousness of

Williams’s offenses has escalated over time.         Williams argues that

his most recent state court convictions involved the same scheme as

the instant case, but not that he was wrongly convicted or that

they involved precisely the same conduct as the instant case.

            The   district    court     properly     proceeded       to    move

incrementally down the sentencing table to higher offense levels in

Criminal History Category VI, determining that each level did not

impose an adequate sentence until it reached offense level 20. See

United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007).               Using

level 20, the court imposed a sentence of 74 months’ imprisonment,

near the low end of the guidelines range, based upon Williams’s

arguments for mitigation.     The overall sentence imposed reasonably

reflects Williams’s extensive criminal history, composed largely of

similar offenses, many of which he committed while he was on

probation, which was not adequately reflected by the sentencing

range available at the pre-departure offense level of 16. Although

the district court did not elaborate on the § 3553(a) factors in

checklist    fashion,   the   court    adequately    stated   that    it    had


                                  - 5 -
considered those factors and properly explained its decision to

depart upward based upon the guidelines by describing Williams’s

escalating history of obtaining property or services by false

pretenses.      Accordingly, we conclude that the district court did

not abuse its discretion in imposing Williams’s sentence.              Gall,

522 U.S. at ___, 2007 WL 4292116, *11.

              Williams argues that prosecutorial misconduct interfered

with his counsel’s effectiveness, because the Government refused to

offer him a plea agreement or move to reduce his sentence in

exchange for his cooperation with an investigation, allegedly based

upon Williams’s counsel’s ongoing conflicts with the Government in

other criminal cases.         On direct appeal, this court may address a

claim that counsel was ineffective only if the ineffectiveness

appears conclusively on the face of the record.             United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).         The record does not

conclusively show that Williams received ineffective assistance of

counsel or that there was any prosecutorial misconduct due to the

Government’s failure to reduce his sentence in exchange for his

cooperation or to offer him a plea agreement.              Although Williams

argued at his sentencing hearing that the upward departure won by

the Government should be mitigated by the Government’s failure to

offer   him    a   sentence    reduction   in   exchange   for   cooperation,

Williams did not argue that the Government had failed to move for

such a reduction in retaliation for events that took place in other


                                     - 6 -
cases, or otherwise allege that the failure to move for a reduction

or offer a plea agreement constituted prosecutorial misconduct.

Absent   evidence       of     prosecutorial   misconduct     or   resulting

ineffective assistance on the face of the record, we decline to

consider these claims on direct appeal.

                We affirm the sentence imposed by the district court.

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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