                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4826


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALVIN KEON ANDERSON, a/k/a Muscle,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:09-cr-00082-HEH-1)


Submitted:   August 26, 2010             Decided:   September 15, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia
Beach, Virginia, for Appellant. Neil H. MacBride, United States
Attorney, John S. Davis, Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Alvin Keon Anderson pleaded guilty to possession of a

firearm    after       having          previously         been    convicted       of       a    crime

punishable      by    a     term       of   imprisonment         exceeding      one        year,     in

violation of 18 U.S.C. § 922(g)(1) (2006).                              The district court

sentenced Anderson to ninety-six months of imprisonment and he

now appeals.         Finding no error, we affirm.

              On     appeal,       Anderson      challenges           the    district          court’s

imposition of a departure sentence pursuant to U.S. Sentencing

Guidelines      Manual       (“U.S.S.G.”)             § 4A1.3     (2009).        We        review     a

sentence    for       reasonableness,            applying        an   abuse     of     discretion

standard.       Gall v. United States, 552 U.S. 38, 51 (2007); see

also United States v. Layton, 564 F.3d 330, 335 (4th Cir.),

cert. denied, 130 S. Ct. 290 (2009).                              In so doing, we first

examine     the       sentence          for    “significant            procedural              error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to   consider         the        [18    U.S.C.]       §    3553(a)          [(2006)]       factors,

selecting       a    sentence          based   on      clearly        erroneous        facts,        or

failing    to       adequately         explain    the      chosen      sentence        .    .    .   .”

Gall,   552     U.S.        at    51.        Finally,       this      court     considers            the

substantive reasonableness of the sentence, “taking into account

the totality of the circumstances, including the extent of any

variation from the Guidelines range.”                       Id.

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            Anderson         argues           that       the       district         court    erred    in

finding    that       he    had       committed           a    crime,         for     which    he    was

previously       acquitted         by     a    jury,          by    a    preponderance         of    the

evidence.        Under U.S.S.G. § 4A1.3(a)(1), a district court may

depart     upward      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 .     .    .   .”         In   deciding           whether         to    depart       under    this

provision, the court may consider prior similar adult conduct

not      resulting          in        a       criminal             conviction.                U.S.S.G.

§ 4A1.3(a)(2)(E).           Moreover, “[p]reponderance of the evidence is

the   appropriate          standard         of   proof         for       sentencing         purposes.”

United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009),

cert.    denied,      130    S.       Ct.      1923      (2010).              We    have    thoroughly

reviewed    the       record      and       conclude           that      the       district    court's

decision to upwardly depart was based on the proper criteria set

forth in § 4A1.3, the district court properly found the conduct

that formed the basis of the departure by a preponderance of the

evidence,    and      the    extent         of   the       departure           is    reasonable      and

supported.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions         are      adequately              presented        in     the    materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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