                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 10-5023


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STEVEN THOMPSON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00373-FL-1)


Submitted:   May 20, 2011                  Decided:   June 23, 2011


Before MOTZ, KING, and DAVIS, 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Affirmed by unpublished per curiam opinion.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.    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Unpublished opinions are not binding precedent in this circuit.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:

            Steven Wayne Thompson pled guilty to health care fraud

and   was   sentenced      to     fifty-eight     months       of    imprisonment.       He

argues on appeal that the district court abused its discretion

by departing upward, by the extent of the departure, and by

failing to adequately explain the reasons for departing.                                 We

find no abuse of discretion and therefore affirm.

            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

procedural and substantive reasonableness of a sentence.                                Id.

After determining whether the district court properly calculated

the defendant’s advisory Guidelines range, the appellate court

considers 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.

Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009).       Finally, the appeals court reviews the substantive

reasonableness       of     the      sentence,     “taking       into    account        the

totality    of    the     circumstances,        including       the    extent    of     any

variation from the Guidelines range.”                   Gall, 552 U.S. at 51.

            When reviewing a departure, we consider “whether the

sentencing       court    acted      reasonably    both       with    respect    to     its

decision    to    impose    such      a   sentence      and   with    respect     to    the

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extent of the divergence from the sentencing range.”                                 United

States    v.    Hernandez-Villanueva,            473    F.3d    118,   123    (4th     Cir.

2007).       Under U.S. Sentencing Guidelines Manual § 4A1.3(a)(1)

(2010),        “[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,

an upward departure may be warranted.”                         Additionally, upward

departures from the highest criminal history category, VI, are

specifically      contemplated       by   the     Guidelines.          USSG    §     4A1.3,

comment. (n.2(B)).

               Here, the district court’s decision to depart upwardly

was    reasonable.       The   district         court    found      that,    because     of

Thompson’s        repeated     and     numerous          offenses      of     obtaining

prescription pain medication by fraud, an upward departure was

warranted based on an “increased risk of recidivism, [and] the

need to protect the public.”                The court stated that Thompson’s

repeated conduct evidenced by his criminal history led her to

believe that an 18 to 24 month sentence was insufficient to

prevent Thompson from returning “to doing exactly what he’s done

for just about all of his life.”                  The court therefore concluded

that    an     upward   departure     was       warranted      to   account     for    the

seriousness of his criminal history and the likelihood that he

would    commit     other    crimes.         Moving      incrementally        down     the

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sentencing table the court found that the 57 to 71 month range,

at offense level 17, appropriately accounted for the seriousness

of   Thompson’s       criminal         history         and     the     likelihood          of   him

committing       other    crimes.            After       hearing       argument       from      the

parties    and    considering         the     §       3553(a)       factors,    the    district

court     sentenced      him     to     58    months          imprisonment,       an        upward

departure from the 18 to 24 month advisory Guidelines range.                                     We

conclude that the district court did not abuse its discretion in

determining that a departure was warranted.

            In addition, we conclude 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.    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).

            The     court        appropriately            employed        the     methodology

required     by    USSG     §     4A1.3,          p.s.,       for     crafting    an        upward

departure.        Having       found    Thompson’s            offense     level       of    8   was

inadequate, the district court “mov[ed] incrementally down the

sentencing table to the next higher offense level in Criminal

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History     Category       VI    until     it    [found]       a    guideline        range

appropriate     to   the    case.”        USSG    § 4A1.3(a)(4)(B),        p.s.        The

district court specifically found that offense levels 9 through

16   were     not    adequate      to     reflect      the     seriousness      of     the

defendant’s     criminal        history    or    the   likelihood      that    he     will

commit future crimes.

              We conclude the district court’s decision to depart

under § 4A1.3 was factually supported and that the resulting

sentence      was    reasonable.           Moreover,         the   court   adequately

explained its reasons for the departure.                       We therefore affirm

Thompson’s 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




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