                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4184


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHASE DESEAN FERGUSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:13-cr-00176-FL-1)


Submitted:   October 21, 2014             Decided:   December 23, 2014


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas   G.   Walker,,   United   States    Attorney,
Jennifer P. May-Parker, Phillip A. Rubin, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Chase      Desean     Ferguson        appeals    from      his      63-month

sentence imposed pursuant to his guilty plea to possession of a

firearm    and    ammunition      by      a    convicted    felon.         On   appeal,

Ferguson argues that his sentence is substantively unreasonable

due to the extent of the departure imposed pursuant to U.S.

Sentencing             Guidelines              Manual        § 4A1.3              (2013)

(under-representation of criminal history category).                       We affirm.

            We review any criminal sentence, “whether inside, just

outside,    or    significantly        outside     the    Guidelines    range,”      for

reasonableness,         “under        a       deferential     abuse-of-discretion

standard.”       United States v. King, 673 F.3d 274, 283 (4th Cir.

2012); see Gall v. United States, 552 U.S. 38, 51 (2007).                          When

the district court imposes a departure or variance 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).             The district court “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,



                                              2
364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.

338, 356 (2007)) (alteration omitted).

               Where, as here, the defendant does not challenge the

procedural       reasonableness       of     his        sentence,      we        review      the

sentence       only    for     substantive       reasonableness,            applying         the

abuse-of-discretion           standard.         Gall,    552    U.S.    at       51;    United

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                                A district

court    may    depart    upward    from     an    applicable        Guidelines             range

“[i]f     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.; see United States v. Whorley, 550 F.3d 326,

341     (4th    Cir.     2008)    (noting        that     an    under-representative

criminal history category is an encouraged basis for departure).

To determine whether a departure sentence is appropriate in such

circumstances, the Guidelines state that a court may consider

prior sentences not used in the criminal history calculation or

prior     conduct        not     resulting        in      a    conviction.                  USSG

§ 4A1.3(a)(2), p.s.

               Ferguson argues that the court’s departure to Criminal

History    Category      VI    exaggerated        the    importance         of    his       prior

unscored       convictions,       which     were        all    committed          during       a

relatively short period of time.                   However, the district court

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was well within its discretion to consider a large number of

prior convictions that did not result in any criminal history

points.   Moreover, the court did not rely exclusively on these

unscored convictions to support the upward departure.    It also

considered that Ferguson committed the instant offense shortly

after being released from prison, that he had been leniently

treated in the past, * that he faced pending charges, and that he


    *
        Ferguson contends that the district court erred in
concluding that North Carolina had treated him leniently.     He
draws an analogy to our recent decision in United States v.
Davis, 720 F.3d 215 (4th Cir. 2013).     In Davis, the defendant
had received one consolidated sentence for multiple violations
of North Carolina law, and the district court sentenced him as a
career offender based on that state court judgment. Id. at 216.
The defendant argued that the district court erred by applying
the career offender enhancement “because under the plain
language of the Guidelines, a single consolidated sentence
cannot be counted as separate sentences.”       Id. at 217.   We
agreed, holding “that where a defendant receives a consolidated
sentence (or consolidated judgment) under North Carolina law, it
is one sentence and absent another qualifying sentence, the
[career offender] enhancement is inapplicable.” 720 F.3d at 219
(internal   quotation  marks   omitted).      In   reaching this
conclusion, we relied, in part, on the “well-established
federalism principles which do not permit a federal court to
reject North Carolina’s judgment as to the seriousness of a
North Carolina crime, prosecuted in a North Carolina court and
adjudicated by a North Carolina judge, merely because the
federal court might expect a more serious punishment.”       Id.
(internal quotation marks and brackets omitted).

     Ferguson contends that, just as the Davis court directed
district courts to respect North Carolina’s sentencing scheme
when   considering   whether to   apply  the   career  offender
enhancement, district courts similarly should respect North
Carolina’s    treatment   of  consolidated   convictions   when
considering whether a defendant’s criminal history category is
adequate. We conclude that Ferguson’s argument is flawed.    In
(Continued)
                               4
posed a danger to the community.       Finally, the court carefully

considered     the   intervening   criminal   history     levels       and

explicitly concluded that they were insufficient to meet the

goals   of   sentencing.   We   conclude   that   the   extent    of   the

district court’s departure from the Guidelines was permissible

and that its justifications were sufficiently compelling.              See

United States v. McNeill, 598 F.3d 161, 166-67 (4th Cir. 2010)

(affirming upward departure under § 4A1.3).

             For these reasons, we affirm.    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




addition to principles of federalism, we relied in Davis on the
plain language of the career offender enhancement, which makes
clear “that there must be more than one prior sentence for the
enhancement to apply.”    Id. at 219.    Thus, the focus for a
sentencing court when determining whether a defendant qualifies
as a career offender is the number of sentences, while the
factors involved in a departure for under-representation of
criminal history does not depend on how many “sentences” the
defendant received. As the Davis court clarified, Davis “d[id]
not turn on state law,” but “rest[ed] on what the plain language
of the Guidelines demands.” Id. at 220.



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