                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4590


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISHMAEL SEBASTIAN KELLY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:11-cr-00166-FL-1)


Submitted:   April 29, 2013                   Decided:   May 2, 2013


Before MOTZ, GREGORY, and KEENAN, 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Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Ishmael      Sebastian       Kelly         appeals        the     thirty-month

sentence      imposed     following       his      guilty       plea    to    possession      of

firearms and ammunition by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006).                     On appeal, Kelly argues that

the     district         court’s     upward          departure           resulted       in     a

substantively unreasonable sentence.                        We reject this argument

and 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.),

cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,

552 U.S. 38, 46, 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, 364

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(4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356

(2007))    (alteration     omitted),      cert.       denied,    131   S.       Ct.    2946

(2011).

            Where, as here, the defendant does not challenge the

procedural reasonableness of his sentence, we review only the

substantive reasonableness of the sentence, applying the abuse-

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

Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                        In doing so, this

court     assesses     whether     the     district       court    “abused            [its]

discretion    in     determining     that       the    [18   U.S.C.]        §    3553(a)

[(2006)]     factors    supported        [the    sentence]       and   justified          a

substantial deviation from the Guidelines range.”                           Gall, 552

U.S. at 56.        We must “take into account the totality of the

circumstances, including the extent of [the] variance from the

Guidelines range.”        Id. at 51.            A more significant “departure

should be supported by a more significant justification.”                               Id.

at 50.

            A district court may depart upward from an applicable

Guidelines range “[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.”

U.S.    Sentencing     Guidelines   Manual       § 4A1.3(a)(1),        p.s.      (2011);

see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)

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(nothing 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       a     court       may       consider,        inter      alia,      prior

sentences not used in the criminal history calculation.                                        USSG

§ 4A1.3(a)(2).

            The district court emphasized Kelly’s unscored state

felon-in-possession            conviction          in   upwardly         departing.           Kelly

argues that the court’s departure to Criminal History Category

IV   exaggerated       the          importance        of     this       unscored       conviction

because, had it been scored, it would only have resulted in his

placement    in     Criminal          History         Category        III.       However,       the

district     court     did       not       rely       exclusively        on     this    unscored

conviction to support the upward departure, but also considered

other unscored convictions, the fact that the unscored state

felon-in-possession conviction involved conduct similar to his

current    offense,     Kelly’s           history       of      other    offenses      involving

firearms,     the    danger          he     posed       to      the     community,      and     his

recidivism.        The court also acknowledged Kelly’s arguments in

mitigation    of     his       sentence.           We      conclude      that    the    district

court’s decision to depart from the Guidelines was permissible

and that its justification for the extent of its departure were

sufficiently compelling.                  See United States v. McNeill, 598 F.3d



                                                  4
161, 166-67 (4th Cir. 2010) (affirming upward departure under

§ 4A1.3).

            Accordingly,      we   hold       the   sentence    is   substantively

reasonable and affirm the district court’s criminal judgment.

We   dispense   with   oral    argument        because    the   facts   and   legal

contentions     are   adequately    presented        in   the   materials     before

this court and argument would not aid the decisional process.



                                                                          AFFIRMED




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