                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4485


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RYAN OSHAY LEE, a/k/a Bloody,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:07-cr-00079-D-1)


Submitted:   September 2, 2010            Decided:   October 15, 2010


Before NIEMEYER, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.  Jennifer P. May-Parker, Stephen
Aubrey West, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to the terms of his written plea agreement,

Ryan    Oshay   Lee    pleaded      guilty         to   possession           with   intent   to

distribute five grams or more of crack cocaine, in violation of

21 U.S.C. § 841(a)(1) (2006).                   The district court notified the

parties    that,      pursuant      to      U.S.    Sentencing          Guidelines       Manual

(“USSG”) § 4A1.3(a)(4)(B), p.s. (2007), it intended to depart

upward from Lee’s advisory Guidelines range of 188-235 months’

imprisonment.         See    Fed.      R.    Crim.      P.    32(h).          After     hearing

extensive argument on the issue, the court sentenced Lee to 336

months’ imprisonment.          This appeal timely followed.

            Counsel      for     Lee     has       filed      his   brief       pursuant     to

Anders v. California, 386 U.S. 738 (1967), stating that, in his

view, there are no meritorious issues, but questioning whether

the    district    court       abused       its     discretion          in    denying    Lee’s

request for the substitution of counsel and the reasonableness

of Lee’s sentence.           Although advised of his right to file a pro

se supplemental brief, Lee has not done so.                             For the following

reasons, we affirm.

            We review the denial of a motion for the appointment

of new counsel for an abuse of discretion.                               United States v.

Corporan-Cuevas,        35     F.3d      953,       956      (4th   Cir.        1994).       In

evaluating whether the trial court abused its discretion, this

court   considers:      (1)     the      timeliness          of   the    motion;      (2)    the

                                               2
adequacy of the inquiry into the defendant’s complaint about his

attorney; and (3) whether the attorney/client conflict was so

great     that       it    resulted      in    a     total   lack      of     communication

preventing an adequate defense.                       United States v. Reevey, 364

F.3d    151,     156      (4th   Cir.    2004).        These    factors       are   balanced

against        the        district      court’s       “interest        in     the       orderly

administration of justice.”               Id. at 157.

               Prior to his first sentencing hearing, Lee moved the

court to replace his second court-appointed attorney.                               Although

the    court     granted         the    motion       and   appointed        Lee   his    third

attorney, the court warned Lee that he would not be permitted to

postpone sentencing by firing his attorneys.                            When sentencing

reconvened, Lee requested that the district court permit the

withdrawal of his new attorney.                      The district court denied the

motion.

               We conclude that the district court did not abuse its

discretion       in        denying     Lee’s       motion.       The        district     court

concluded that the motion was untimely, as it was made at the

beginning of Lee’s sentencing hearing.                         Moreover, there was an

insufficient           basis     for     the       motion,     which    was       predicated

exclusively on the fact that counsel had conferred with Lee only

once prior to sentencing and that counsel had not provided Lee

discovery materials.               Finally, there was not a complete break-

down in communication between Lee and counsel.                              Accordingly, we

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affirm the district court’s denial of Lee’s motion. 1                             See id. at

156-57.

                 Counsel also asks this court to review the 336-month

sentence         the     district     court   imposed,          which       was   101   months

greater than the high end of Lee’s Guidelines range.                               We review

a sentence for reasonableness, applying a deferential abuse of

discretion standard.                Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Llamas, 599 F.3d 381, 387 (4th

Cir. 2010).            This review requires appellate consideration of

both       the    procedural        and     substantive          reasonableness         of   a

sentence.         Gall, 552 U.S. at 51.              In determining the procedural

reasonableness of a sentence, this court considers whether the

district         court     properly    calculated         the    defendant’s        advisory

Guidelines        range,     considered       the    18   U.S.C.        §    3553(a)    (2006)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                            Id.      “Regardless

of   whether       the     district       court     imposes      an     above,     below,    or


       1
       Counsel suggests that Lee’s request for appointment of new
counsel implies that counsel was constitutionally deficient in
his representation.     We conclude, however, that it is not
apparent on the face of the record that counsel was ineffective.
Accordingly, we decline to consider this issue on direct appeal.
See United States v. Benton, 523 F.3d 424, 435 (4th Cir.), cert.
denied, 129 S. Ct. 490 (2008); United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999) (providing standard and noting
that ineffective assistance of counsel claims generally should
be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)).



                                              4
within-Guidelines         sentence,       it       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) (internal quotation marks omitted).                                 This court

next assesses 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) (quoting Gall, 552 U.S. at 51).

                In assessing a sentencing court’s decision to depart

from   a   defendant’s       Guidelines        range,       this       court      “consider[s]

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.    McNeill,    598      F.3d     161,       166    (4th       Cir.)    (internal

quotation marks omitted), petition for cert. filed, __ U.S.L.W.

__ (U.S. July 2, 2010) (No. 10-5258).                            Thus, this court will

defer to the district court’s sentencing decision so long as it

is reasonable, and we will not reverse a sentence simply because

it “would not have been the choice of the appellate court.”

United States v. Evans, 526 F.3d 155, 160 (4th Cir.), cert.

denied, 129 S. Ct. 476 (2008).

                The district court’s decision to depart upward from

Lee’s Guidelines range was informed by his extensive criminal

                                               5
history.     Lee, who was twenty-one years old at the time he was

sentenced, had twenty-seven prior convictions, eight of which

were for felony offenses.              The court further noted that Lee’s

crimes     were   increasingly       violent,     that    he   was    a   known   gang

leader,     and   that   he    had    several     probation     violations.       The

relevant    policy   statement        specifically       contemplates      an   upward

departure on the basis of the extent and nature of a defendant’s

criminal history even when, as Lee did here, the defendant has a

category VI criminal history.              See USSG § 4A1.3(a)(4)(B), p.s.

In   the   background     commentary       to    this    policy      statement,    the

Sentencing Commission recognized that an upward departure may be

appropriate for “younger defendants (e.g., defendants in their

early twenties or younger) who are more likely to have received

repeated lenient treatment, . . . [as they] may actually pose a

greater risk of serious recidivism than older defendants.”                        USSG

§ 4A1.3,     p.s.,   comment.        (backg’d).       This     was   precisely    the

scenario present in this case, and we hold that the district

court’s     decision     to     depart     was     neither      procedurally      nor

substantively unreasonable.            See McNeill, 598 F.3d at 166.

             We must next consider the reasonableness of the extent

of the departure in this case.                Because Lee had a category VI

criminal    history,     the   district       court   considered      incrementally

higher     offense   levels,     see     USSG    § 4A1.3(a)(4)(B),        p.s.,    and

offered salient reasons for rejecting the offense levels between

                                          6
Lee’s total adjusted offense level (thirty-one) and the offense

level it deemed appropriate (thirty-five).              The court found that

the   interim   offense    levels    did   not   adequately        reflect      the

seriousness of Lee’s criminal history or the strong likelihood

that, without adequate deterrence, he would continue to commit

crimes,   particularly    violent    crimes,     upon    his   return     to    the

community.

           We conclude that the district court adhered to the

proper    procedure       for    a    departure         pursuant     to        USSG

§ 4A1.3(a)(4)(B), p.s.;         see United States v. Dalton, 477 F.3d

195, 199 (4th Cir. 2007) (explaining incremental approach and

sentencing court’s obligation to state its basis for departing).

Further, we hold that the extent of the departure is reasonable

in light of the seriousness of Lee’s criminal history and his

alarming rate of recidivism.         See McNeill, 598 F.3d at 166-67.

For these reasons, we affirm Lee’s sentence. 2

           In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.                          The

district court complied with the mandates of Federal Rule of


      2
       Finally, Lee suggests the district court did not afford
counsel a sufficient opportunity to be heard at sentencing. To
the contrary, the record reveals that the district court gave
counsel ample opportunity both to argue against the upward
departure and for a sentence at the low end of the post-
departure range. Accordingly, we reject this argument.



                                      7
Criminal Procedure 11 in accepting Lee’s guilty plea, which was

knowing    and   voluntary.      Accordingly,      we    affirm    the       district

court’s judgment.        This court requires that counsel inform his

client, in writing, of his right to petition the Supreme Court

of the United States for further review.                If the client 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 the client.                             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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