                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4367



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


RICKY EDWARD DAVIS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:06-cr-00063)


Submitted:   December 21, 2007            Decided:   January 17, 2008


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


Affirmed by unpublished per curiam opinion.


William H. Cleaveland, WILLIAM H. CLEAVELAND, P.L.C., Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Ricky Edward Davis pled guilty to possession of a firearm

by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000).

In sentencing Davis, the district court departed upward from the

armed career criminal guideline range of 188-235 months and imposed

a sentence of 260 months imprisonment pursuant to U.S. Sentencing

Guidelines    Manual   §    4A1.3,    p.s.    (2006).       Davis   appeals   his

sentence, contending that the sentence is unreasonable. We affirm.

           Davis was fifty-one years old when he was sentenced.                He

had three criminal history points, but because he had three prior

felony   convictions    for   crimes    of    violence,      he   qualified   for

sentencing as an armed career criminal. 18 U.S.C.A. § 924(e) (West

2000 & Supp. 2007).        Davis’ lawyer argued that 235 months was a

sentence sufficient to punish him adequately for his crimes and to

protect the public. However, the court decided to depart upward to

a sentence of 260 months, the equivalent of a one-level increase in

the offense level.         The court explained that the departure was

warranted because criminal history category VI under-represented

the seriousness of Davis’ criminal history and did not adequately

reflect the likelihood that he would commit future crimes.                    The

court also relied on the failure of the guidelines to take into

account the circumstances leading to Davis’ arrest, which included

“uncharged    state    conduct   of    discharging      a   firearm   within    a

residence, [and] . . . the defendant barricading himself inside his


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residence,” which could “have resulted in additional victims being

injured or killed, as well as the inherent safety issues involved

with law enforcement officers facing a barricaded suspect.”                          The

court found that the 260-month sentence “appropriately provides for

the sentencing objectives as cited in 18 U.S.C. Section 3553(a)[*],

specifically the nature and circumstances of the offense, the

seriousness of the offense, the need to provide just punishment,

[and] the need to protect the public from further crimes of the

defendant.”

                   After United States v. Booker, 543 U.S. 220 (2005), a

sentence       is    reviewed     for    reasonableness.        United      States    v.

Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.

2054       (2006).      When    reviewing    a    departure,    the   appeals       court

considers “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).

               A     district    court    may     depart    upward    based    on    the

inadequacy         of   the    defendant’s       criminal   history    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 . . . .”                  USSG § 4A1.3(a)(1).        However,


       *
        18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).

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the defendant’s arrest record “shall not be considered for purposes

of   an    upward   departure    under   this   policy   statement.”      USSG

§ 4A1.3(a)(3) (emphasis added).

             Here, the court emphasized Davis’ long arrest record.

However, the court properly relied on the relatively lenient

sentences Davis had previously received for robbery, two unlawful

wounding convictions, and taking indecent liberties with a child.

The court could also consider the uncharged conduct leading to his

arrest on the current federal firearm charge and the sentencing

goals and factors set out in § 3553(a).            The court’s decision to

depart     was   not   procedurally      or   substantively    unreasonable,

particularly in light of the Supreme Court’s recent holding in

Gall v. United States, __ S. Ct. __, 2007 WL 4292116, at *7, *13

(Dec. 10, 2007) (No. 06-7949), that appellate courts should review

sentences outside the advisory guidelines range for abuse of

discretion only.

             In addition, the extent of the departure was reasonable.

The district court did not explicitly follow the procedure provided

in   §    4A1.3(a)(4)(B)   for   departures     above    category   VI,   which

requires the court to move to higher offense levels until it finds

one that yields an adequate guideline range, but an increase of one

offense level would produce a guideline range of 210-262 months.

The 260-month sentence was within this range.




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           We therefore 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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