                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4572


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEFFREY PATRICK FRYE,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00291-DCN-1)


Submitted:   February 25, 2011            Decided:   March 17, 2011


Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Nick Bianchi, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jeffrey     Patrick         Frye       pled    guilty     without        a     plea

agreement    to    seven   counts       of     bank       robbery,    in   violation        of

18 U.S.C.    § 2113(a)       (2006).           The      district     court      calculated

Frye’s    Guidelines    range      under       the      U.S.     Sentencing     Guidelines

Manual    (“USSG”)     (2009)      at    151       to   188      months’   imprisonment,

departed upward pursuant to USSG § 4A1.3(a), p.s., and sentenced

Frye to seven concurrent terms of 240 months’ imprisonment.                                 On

appeal, Frye argues that the district court erred in imposing

his sentence.      We affirm.

            When determining a sentence, the district court must

calculate the appropriate advisory Guidelines range and consider

it   in   conjunction      with    the    factors          set    forth    at   18       U.S.C.

§ 3553(a)    (2006).        Gall    v.    United          States,    552    U.S.     38,     51

(2007).     Appellate review of a sentence, “whether inside, just

outside, or significantly outside the Guidelines range,” is for

abuse of discretion.         Id. at 41.

            Frye     challenges         the       district       court’s    decision         to

impose the upward departure.              A district court may depart upward

from the Guidelines range under USSG § 4A1.3(a), p.s., when “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), p.s.; see United States v. Whorley, 550 F.3d

                                              2
326, 341 (4th Cir. 2008) (noting that an under-representative

criminal history category is an encouraged basis for departure).

              In        determining     whether       a     departure            sentence      is

appropriate in such circumstances, the Guidelines state that a

court   may    consider       prior     sentences         not   used    in       the     criminal

history calculation, prior sentences of “substantially more than

one year” for independent crimes committed at different times,

prior   similar         misconduct     resolved       by    civil      or    administrative

adjudication, charges pending at the time of the offense, or

prior   similar          conduct     that    did    not    result      in    a     conviction.

See USSG § 4A1.3(a)(2), p.s.

              In this case, the record supports the district court’s

conclusion         that    Frye’s     criminal       history      category          failed    to

reflect adequately the seriousness of his criminal history and

the likelihood of his recidivism.                      Frye had multiple unscored

convictions not included in his criminal history category, a

lengthy criminal history replete with recidivism, and several

arrests    for      conduct        involving       theft    and   fraud.            Thus,    the

district court did not err in imposing the departure.

              Frye also claims that the district court abused its

discretion         in     imposing     the     departure        sentence          because     the

sentence is not supported by the 18 U.S.C. § 3553(a) sentencing

factors.           When     reviewing        the    reasonableness           of     an    upward

departure sentence, we “must give due deference to the district

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court's decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.”              Gall, 552 U.S. at 51.                 “Even if we

would have reached a different sentencing result on our own,

this   fact    alone      is    ‘insufficient         to    justify      reversal      of   the

district court.’”              United States v. Pauley, 511 F.3d 468, 474

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).                              Under 18 U.S.C.

§ 3553(a), the district court should consider the nature and

circumstances of the offense and the history and characteristics

of   the   defendant.           The    court       should    impose      a    sentence      that

reflects the seriousness of the offense, and the need to promote

respect    for     the    law,    to    provide       just       punishment,      to   afford

adequate deterrence, to protect the public from further crimes,

and to provide the defendant with adequate rehabilitation or

medical treatment.

              We   have    reviewed      the       record       and    conclude    that,      in

imposing the departure sentence, the district court provided an

adequate      individualized          assessment       of       the    relevant    § 3553(a)

sentencing factors in relation to Frye and his criminal conduct.

The court took into consideration Frye’s prior criminal conduct,

which demonstrated a lack of respect for the law, the serious

nature of his offenses, and the need for the sentence to deter

Frye and protect the public.                       Although Frye argues that the

240-month sentence is unreasonable in view of his mental health

history,      we   afford       “due    deference          to    the    district       court’s

                                               4
decision that the § 3553(a) factors, on a whole, justify the

extent” of the departure.    Gall, 552 U.S. at 51.

          Thus,   we   conclude   that   the   district   court   did   not

abuse its discretion in sentencing Frye.           We therefore affirm

the district court's judgment.         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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