                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4265



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


SHARIFF   OMAR   CARMICHAEL,    a/k/a   Michael
Johnson, a/k/a Paul Johnson,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:04-cr-00249)


Submitted:   January 18, 2008           Decided:    February 28, 2008


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tolly A. Kennon, III, KENNON & ASSOCIATES, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Shariff Omar Carmichael was convicted of bank robbery,

armed bank robbery, using and carrying a firearm during a crime of

violence, and possession of a firearm by a convicted felon, all

arising from the July 19, 2004 robbery of the State Employees

Credit   Union      in   Charlotte,   North   Carolina.    He   appeals    his

conviction     and    346-month    total   sentence,   contending   that   the

district court abused its discretion in severing his trial from

that of a co-defendant, erred in disqualifying certain prospective

jurors and allowing other prospective jurors to serve on the jury,

and   erred    in    determining   Carmichael’s   sentence.      Finding    no

reversible error, we affirm Carmichael’s convictions and sentence.

              Co-defendant Gina Marie Sarrubbo was charged in the same

indictment as Carmichael with one count of knowingly selling a

firearm to and disposing of ammunition for a convicted felon, in

violation of 18 U.S.C.A. § 922(d) (West 2000 & Supp. 2007).

Although Carmichael and Sarrubbo were named in the same indictment,

they were named in separate counts.           Sarrubbo sought a severance,

asserting that she intended to call Carmichael as a witness on her

behalf, but if they were tried together, he would likely assert his

right not to incriminate himself, thus prejudicing her ability to

present her defense.          Sarrubbo also asserted that her defense

directly conflicted with Carmichael’s and that there would be

little overlap in the evidence against them because they were


                                      - 2 -
charged in separate counts in the indictment.                 We find no abuse of

discretion by the district court decision to grant Sarrubbo’s

motion for a severance.         See Zafiro v. United States, 506 U.S. 534,

541 (1993); United States v. Allen, 491 F.3d 178, 189 (4th Cir.

2007) (allowing severance where disparity of culpability).

              Next, Carmichael contends that the district court erred

in disqualifying certain prospective jurors and allowing other

prospective jurors to serve on the jury for his trial.                        First,

Carmichael waived any objections to seated jurors by his failure to

object to the empaneling of the jury.                See McNeill v. Polk, 476

F.3d 206, 225 (4th Cir.), cert. denied, 128 S. Ct. 647 (2007);

Allen v. Lee, 366 F.3d 319, 328 (4th Cir. 2004). Second, the

district   court’s      decisions     to    disqualify     certain        jurors   had

reasonable     bases    and     therefore    the   court   did      not    abuse   its

discretion     in    disqualifying       certain   potential     jurors      and   not

others.    See United States v. Fulks, 454 F.3d 410, 427 (4th Cir.

2006), cert. denied, 127 S. Ct. 3002 (2007).                  Third, the district

court   did    not     commit    clear     error    in   determining       that    the

Government’s peremptory challenges were not discriminatory under

Batson v. Kentucky, 476 U.S. 79 (1986).                  See United States v.

Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

              Finally, Carmichael contends that the district court

erred in determining his sentence.               He contends that the district

court   violated       his    Sixth   Amendment      rights    by    applying      the


                                         - 3 -
Sentencing Guidelines as mandatory and by increasing his sentence

based on facts not admitted by him or found by the jury beyond a

reasonable doubt.

            In determining Carmichael’s sentence, the court enhanced

it based on the court’s determination, by a preponderance of the

evidence, that Carmichael committed an armed robbery, and that he

possessed a firearm after having been convicted of a felony.

Carmichael contends that these findings violate United States v.

Booker, 543 U.S. 220 (2005), and In re Winship, 397 U.S. 358, 364

(1970), which protect a criminal defendant from being convicted on

less than a “beyond a reasonable doubt” standard.

            The Supreme Court in Booker held that the mandatory

enhancement of a defendant’s sentence based on facts not admitted

by the defendant or submitted to a jury and found beyond a

reasonable doubt violates the Sixth Amendment. Booker, 543 U.S. at

244-46.    However, the Court excised the statutory provisions which

required    the    Guidelines    to   be   mandatory,    and    instead    made

application of the Guidelines advisory.          Id. at 245.      Thus, after

Booker,    the    sentencing    court   is    directed   to    determine    the

applicable guideline range, making all appropriate findings of

fact.     United States v. Moreland, 437 F.3d 424, 432 (4th Cir.),

cert. denied, 126 S. Ct. 2054 (2006).           The resulting range is the

advisory guideline range.       The court then is to consider whether a

departure is warranted, either under the Guidelines or under case


                                      - 4 -
law, and whether a variance is appropriate, giving consideration of

the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).    Id.

Any variance sentence must be explained in light of the § 3553(a)

factors.

           After Booker, a district court is no longer bound by the

range prescribed by the sentencing guidelines.      A district court’s

decision to depart (or vary) from the advisory guidelines is

reviewed for reasonableness.       United States v. Dalton, 477 F.3d

195, 197 (4th Cir. 2007).      In reviewing a sentence outside the

guidelines range, “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

guideline range.”   United States v. Hernandez-Villanueva, 473 F.3d

118, 123 (4th Cir. 2007).   A sentence is unreasonable if the “court

provides an inadequate statement of reasons or relies on improper

factors in imposing a sentence outside the properly calculated

advisory sentence range.”    Id.

           Relying on U.S. Sentencing Guidelines Manual § 4A1.3,

p.s. (2006), the district court imposed a sentence of 262-months on

the armed bank robbery charge.      This was two-and-a-half times more

than the top of the pre-departure advisory range (105 months).

According to USSG § 4A1.3, a district court may depart upward from

an applicable guidelines range if “reliable information indicates

that the defendant’s criminal history category substantially under-


                                   - 5 -
represents the seriousness of the defendant’s criminal history or

the likelihood that the defendant will commit other crimes.”               USSG

§ 4A1.3(a)(1).    In deciding whether a departure is warranted under

§ 4A1.3, a sentencing court may consider prior similar adult

conduct which did not result in a criminal conviction.                     USSG

§ 4A1.3(a)(2)(E). Here, after hearing evidence, the district court

found by a preponderance of the evidence that Carmichael committed

an armed robbery on July 9, 2004, and that he was in possession of

a firearm when he was arrested on July 27, 2004.              Based on these

findings, the court departed upward under USSG § 4A1.3(a)(4)(B),

which provides that when a “defendant’s criminal history . . .

warrant[s] an upward departure from Criminal History Category VI

the court should structure the departure by moving incrementally

down the sentencing table to the next higher offense level in

Criminal History Category VI until it finds a guideline range

appropriate to the case.”      USSG § 4A1.3(a)(4)(B); see Dalton, 477

F.3d at 199.     The district court alternatively granted an upward

variance based on its consideration of 18 U.S.C. § 3553(a).

           The district court’s decision to vary or depart was

based,   not   only   on   conduct   not     resulting   in   conviction   and

Carmichael’s extensive criminal history, but also on the court’s

observations that Carmichael was a chronic recidivist, the need to

protect the public from further crimes by Carmichael, and that he

failed to constructively utilize the excellent training he had


                                     - 6 -
received when previously incarcerated at the federal correctional

institute.     Accordingly, we conclude that the district court

sufficiently   articulated   its    reasons   for   departing   from   the

guidelines range and that the sentence imposed was reasonable. See

Moreland, 437 F.3d at 432;   see also Gall v. United States, 128 S.

Ct. 586 (2007) (holding that courts of appeals should review

sentences outside the advisory guidelines range for abuse of

discretion only).

            In conclusion, we affirm Carmichael’s convictions and

sentence.    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




                                   - 7 -
