                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4939


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEITHON DERNARD SOUTHERLAND,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (7:09-cr-00068-FL-1)


Submitted:   July 18, 2011                 Decided:   August 9, 2011


Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Keithon Dernard Southerland appeals his conviction and

105-month sentence for one count of possession of a firearm and

ammunition    by   a    convicted     felon         in    violation     of   18   U.S.C.

§ 922(g)(1)    (2006).       On    appeal      he    asserts     that    the    district

court erred in denying his motion to suppress the firearm and

ammunition, that the Government breached the plea agreement, and

that the district court imposed an unreasonable sentence.                            For

the following reasons, we affirm.

             Southerland’s indictment and conviction stemmed from

the robbery of a home in North Carolina.                     On October 25, 2008,

police   responded      to   a    report       of   an    unlawful      entry     into   a

residence.     Resident Thomas Joseph Marino informed Wilmington,

North Carolina, police that while he was out walking his dog,

someone entered his home through an unlocked door and stole a

Toshiba laptop computer and a Samsung cell phone.                              Using GPS

features imbedded in the phone, police tracked its location to

the vicinity of 401 Henry Street.

             Officer R.V. Dawson observed a silver Cadillac parked

in the driveway of the home located at 401 Henry Street.                          Dawson

peered into the vehicle, and observed in plain view, a phone and

a   laptop   matching    the      description        of    the   items    stolen    from

Marino’s home.         Dawson obtained Southerland’s consent to open



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the laptop computer, and when the computer loaded, the name “Tom

Marino”    was       listed     as    the        primary    user.            Southerland      was

arrested for possession of stolen property.                              After Southerland

was placed in a patrol car, Dawson and other officers searched

the Cadillac.         In the course of the search, they found a jacket

located in the front passenger seat.                            In the pocket of the

jacket,    Dawson       found       the     magazine       of   a      handgun.         Shortly

thereafter, a second officer located a handgun near the back

seat of the vehicle.

               Southerland          moved        to    suppress         the     firearm       and

ammunition seized from his vehicle.                         After the district court

denied    the    motion,        Southerland           entered      a   conditional          guilty

plea,    reserving       the       right    to    appeal      from     the    denial    of     his

motion    to    suppress.           Southerland        memorialized           his   plea     in   a

written    agreement       with       the        Government.           Pertinent       to    this

appeal, the Government agreed that it would “make known to the

[district       court]        at     sentencing         the     full         extent    of      the

Defendant’s cooperation, but the United States is not promising

to move for a departure pursuant to [U.S. Sentencing Guidelines

Manual] § 5K1.1, 18 U.S.C. § 3553(e) [(2006)], or Fed. R. Crim.

P. 35.”

               The    advisory        Guidelines           range       calculated      by      the

Probation       Office     in       Southerland’s          presentence          investigation



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report (“PSR”) was 30 to 37 months, based on an offense level of

15 and a criminal history category of IV.                             The Government moved

for an upward departure, arguing that Southerland’s Guidelines

criminal      history      category       significantly           underrepresented            his

actual criminal          history    and       likelihood         of    recidivism.           At   a

sentencing         hearing,   the    district            court    granted       the    motion,

departed      to    an   offense     level         of    twenty-two       and    a    criminal

history category of VI (carrying an advisory Guidelines range of

84    to   105     months),   and    imposed         a   105-month       sentence.           This

timely appeal followed.



                              I.     Motion to Suppress

              In     reviewing       a        district      court’s          denial      of       a

suppression         motion,   we    review         the     district       court’s      factual

determinations for clear error and any legal determinations de

novo.      See United States v. Kelly, 592 F.3d 586, 589 (4th Cir.),

cert. denied, 130 S. Ct. 3374 (2010).                             Because the district

court denied Southerland’s motion, we construe the evidence “in

the   light      most    favorable       to    the      government.”         Id.      (citation

omitted).

              The    Fourth    Amendment           guarantees         “the   right      of    the

people to be secure . . . against unreasonable searches and

seizures” and requires that “searches be conducted pursuant to a



                                               4
warrant     issued          by     an        independent        judicial               officer.”

California v. Carney, 471 U.S. 386, 390 (1985).                             An established

exception     to      the    warrant         requirement        is        the     “automobile

exception.”        Kelly, 592 F.3d at 589.                   Under this exception,

police may search a vehicle without a warrant if “probable cause

exists to believe it contains contraband” and the vehicle is

“readily mobile.”            Pennsylvania v. Labron, 518 U.S. 938, 940

(1996).     If     both     conditions         are    met,   police        may       conduct    a

warrantless search “that is as thorough as a magistrate could

authorize in a warrant.”                United States v. Ross, 456 U.S. 798,

800 (1982).        Furthermore, such a search may cover all areas of

the vehicle, including any of its “secret compartments.”                                 United

States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996).

            The gravamen of Southerland’s objection to the search

of   his   vehicle     is    that       it    was    not   authorized           in     light   of

Arizona v. Gant, 129 S. Ct. 1710 (2009).                             In that case, the

Supreme Court held that a search of a vehicle incident to the

arrest of the driver is justified “only when the arrestee is

unsecured     and     within        reaching         distance        of     the        passenger

compartment      at    the       time    of     the    search”        or        when    “it    is

‘reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.’”                      129 S. Ct. at 1719 (quoting

Thornton v. United States, 541 U.S. 615, 632 (2004)).



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               Gant did not, however, alter the long-standing rule

that    if     officers     have     “probable        cause   to    believe      a   vehicle

contains evidence of criminal activity,” they may search any

area of the vehicle where evidence of criminal activity may be

found.       Id. at 1721 (citing cases); see United States v. Dickey-

Bey,     393    F.3d     449,      456-57      (4th Cir. 2004)          (“We    need     not,

however, decide whether the search of Dickey-Bey’s automobile

was properly incident to his arrest because we conclude that the

circumstances          in    this       case       provided   officers          independent

probable cause to search the automobile.”).

               Probable      cause      exists       “where   the       known    facts    and

circumstances are sufficient to warrant a [person] of reasonable

prudence in the belief that contraband or evidence of a crime

will be found.”             Ornelas v. United States, 517 U.S. 690, 696

(1996).        Probable      cause      “is    a    ‘commonsense’        conception      that

deals with ‘the factual and practical considerations of everyday

life.’”        Kelly, 592 F.3d at 592 (quoting Ornelas, 517 U.S. at

695).     In assessing whether probable cause exists, courts must

“examine       the     facts     from    the        standpoint     of    an     objectively

reasonable police officer, giving due weight to inferences drawn

from    those     facts     by     local      law    enforcement        officers.”        Id.

(internal quotation marks and ellipsis omitted).




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               On these facts, we have no difficulty in concluding

that    probable      cause      existed         to    search        Southerland’s       vehicle.

Police    tracked      the     stolen       property           to    the   address    where    the

vehicle was located and items matching the stolen property were

seen in plain view inside the vehicle.                                When police confirmed

that the items were in fact stolen, they had ample probable

cause    to    search      the    remainder           of   the       vehicle   for    additional

stolen items.          This is particularly so here, as Marino had not

had time to inventory his possessions and thus could not be sure

that     the    laptop        and     phone       were         the    only     missing     items.

Accordingly,         the   district         court       did     not     err    in   denying    the

motion to suppress.



                           II.      Breach of Plea Agreement

               Southerland next argues that the Government breached

the plea agreement by failing to “make known to the Court at

sentencing the full extent of the Defendant’s cooperation.”

               “It    is      settled           that       a    defendant         alleging     the

Government’s         breach      of   a    plea       agreement        bears    the   burden   of

establishing that breach by a preponderance of the evidence.”

United    States      v.     Snow,        234    F.3d      187,      189   (4th     Cir.   2000).

Because Southerland did not raise his claim of breach in the

district court, we review it for plain error.                                  See Puckett v.



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United States, 129 S. Ct. 1423, 1428-29 (2009).                  To prevail

under this standard, Southerland must show not only that the

Government plainly breached the plea agreement, but also that he

was prejudiced by the error and that “the breach was so obvious

and substantial that failure to notice and correct it [would

affect]   the   fairness,   integrity       or   public   reputation   of    the

judicial proceedings.”          United States v. McQueen, 108 F.3d 64,

66 (4th Cir. 1997) (internal quotation marks omitted).

           On appeal, the Government asserts that Southerland did

not cooperate or provide any information.             Moreover, Southerland

has failed to even assert on appeal that he made any attempt to

cooperate with the Government.              Under these circumstances, we

cannot find plain error.



                                III. Sentence

           Southerland claims that the district court imposed an

unreasonable sentence.          He claims that the district court did

not offer an adequate explanation for its decision to depart

from the Guidelines range indicated in the PSR.                     We do not

agree.

           A    sentence   is    reviewed    for   reasonableness    under    an

abuse of discretion standard.          Gall v. United States, 552 U.S.

38, 51 (2007).      This review requires consideration of both the



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procedural and substantive reasonableness of a sentence.                            Id.;

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

After determining whether the district court properly calculated

the defendant’s advisory guideline range, we must decide whether

the district court considered the 18 U.S.C. § 3553(a) (2006)

factors, analyzed the arguments presented by the parties, and

sufficiently explained the selected sentence.                       Lynn, 592 F.3d at

575-76;     see     United   States      v.      Carter,      564    F.3d   325,      330

(4th Cir. 2009).          Properly preserved claims of procedural error

are subject to harmless error review.                     Lynn, 592 F.3d at 576.

If the sentence is free of significant procedural error, the

appellate court reviews the substantive reasonableness of the

sentence.       Id. at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

            When the district court imposes a departure 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).            We   have      recognized,        however,   that    a

district    court’s       error   in    applying      a    departure     sentence      is

harmless     if     the    sentence     is       ultimately     justified      by    the

§ 3553(a) sentencing factors.                United States v. Evans, 526 F.3d



                                             9
155, 165 (4th Cir. 2008) (“[E]ven assuming the district court

erred    in    applying       the    Guideline         departure     provisions,       [the

defendant’s]       sentence,         which        is    well-justified         by     [the]

§ 3553(a) factors, is reasonable).

              Under    USSG      § 4A1.3(a)(1),          the    district      court     may

upwardly      depart    from     the    Guidelines           sentence    if    the    court

determines      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[.]”                        The court may consider

prior    sentences      not    used    in    computing         the   criminal        history

category.      See USSG § 4A1.3(a)(2)(A).

              Here, the decision to depart upwardly was reasonable.

The    district    court      discussed      at        great    length    Southerland’s

criminal history and the possibility of recidivism.                            The court

noted that Southerland “lack[s] any constructive influence or

positive guidance, [lacks] any education, [lacks] any meaningful

work    ethic[.]”          The      court     stated         that    Southerland       “has

completely flouted the law, failed to submit to supervision, has

even been censured in this district in federal court, and he

can’t figure out that he has to follow the rules.”                             The court

also    discussed      Southerland’s         prior       arrests:       “motor       vehicle

infractions, 15 counts of breaking and entering; 19 counts of



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misdemeanor        larceny;       weapons     on    an     educational        property;        11

counts of misdemeanor possession of stolen goods or property.”

              In     addition,       the     extent       of    the    district         court’s

departure     was        reasonable.         In     determining        the    extent      of    a

departure under USSG § 4A1.3, the district court must use an

incremental         approach.          See        § USSG       4A1.3(a)(4)(A);          United

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

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

incremental approach requires the district court to refer first

to the next higher category and explain why it fails to reflect

the seriousness of the defendant’s record before considering a

higher category.           See United States v. Rusher, 966 F.2d 868, 884

(4th Cir. 1992).            However, a sentencing judge is not required

“to move only one level, or to explain its rejection of each and

every intervening level.”                   Dalton, 477 F.3d at 199 (internal

quotations omitted).

              Here,       although     not    required         to     do    so,   the    court

discussed each intervening offense level and explained why each

was   insufficient          to    account     for    Southerland’s           likelihood        of

recidivism         and    dangerousness.            (Vol.      I    J.A.     152-53).          In

particularly             strong     terms,         the      court          concluded      that

Southerland’s

      history is one of complete and utter disregard for any
      rule or any societal norm evidenced in every area, be


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      it school, be it in the workplace, be it in basic
      interaction  with  persons,   including  respect  for
      personal property.  The resort to weaponry is raising
      the dangerousness, and the dabbling in drugs is, as
      well.

(Vol. I J.A. 152-53).           We thus conclude without difficulty that

the district court acted reasonably in departing in the manner

and   to    the    extent   that   it    did,    and    that   the    court    fully

explained its rationale for imposing a departure sentence.

             We    therefore    affirm     the    judgment     of    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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