                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4483


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GLENN BARRY MCDOUGALD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:08-cr-00092-D-1)


Submitted:   July 14, 2010                  Decided:     August 6, 2010


Before MOTZ and    SHEDD,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Banumathi
Rangarajan, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Glenn Barry McDougald pled guilty to possession of a

firearm     by   a    convicted     felon,     18    U.S.C.   §§    922(g)(1),       924

(2006), and was sentenced as an armed career criminal to a term

of 324 months of imprisonment.                McDougald argues on appeal that

his sentence is unreasonable because the district court’s four-

level departure above the Sentencing Guidelines range pursuant

to   U.S.    Sentencing         Guidelines      Manual    §    4A1.3    (2008)       was

unwarranted.         We 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 guideline 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.



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              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

extent of the divergence from the sentencing range.”                                           United

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

2007).      Under     USSG     § 4A1.3(a)(1),          “[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.            Commentary to USSG § 4A1.3, p.s., provides:

“In the case of an egregious, serious criminal record in which

even the guideline range for Criminal History Category VI is not

adequate to reflect the seriousness of the defendant’s criminal

history, a departure above the guideline range for a defendant

with    Criminal      History     Category       VI     may       be    warranted.”              USSG

§ 4A1.3,      comment.     (n.2(B)).         Furthermore,               commentary         to     the

armed    career       criminal        guideline        reflects           that       an        upward

departure pursuant to USSG § 4A1.3, p.s., will be appropriate in

some cases when the defendant is sentenced as an armed career

criminal.      See USSG § 4B1.4, comment. (back’d.) (“In some cases,

the criminal history category may not adequately reflect the

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defendant’s      criminal    history.”);      see    also   United    States    v.

McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (rejecting argument

that an upward departure is contemplated only where armed career

criminals have a criminal history category IV or V).

            Here, the district court’s decision to depart upwardly

was reasonable.          The district court noted that McDougald had

committed     thirty-one     prior    felonies      and   eight    misdemeanors;

highlighted      McDougald’s      multitude    of    unscored     offenses;    and

repeatedly      remarked    on    McDougald’s    staggering       propensity   to

commit serious offenses and his unwillingness to conform to the

law.   In fact, the court noted McDougald continued to engage in

illegal conduct while incarcerated and on probation.                     McDougald

had four times the number of predicate crimes necessary for an

armed career criminal sentence.             The record therefore supports

the court’s conclusion that McDougald’s armed career criminal

designation failed to adequately reflect both the seriousness of

his criminal history and his likelihood of recidivism.

            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); McNeill, 598

F.3d at 166; 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

                                        4
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).                                          “And

while a court should indicate its reasons for departing upward

under section 4A1.3, it need not . . . go through a ritualistic

exercise        in    which        it    mechanically            discusses       each     criminal

history category or offense level it rejects en route to the

category       or     offense      level       that       it    selects.”        Id.     (internal

quotations and brackets omitted).

               With respect to the degree of departure, the court

employed the methodology required by USSG § 4A1.3, p.s., for

crafting an upward departure when even criminal history category

VI   is   insufficient.                 Having      found       McDougald’s      total     offense

level     of    thirty       was    inadequate,           the     district       court    “mov[ed]

incrementally          down     the      sentencing            table     to   the   next    higher

offense level in Criminal 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       thirty-one            through       thirty-three      were     not

adequate to reflect the seriousness of the defendant’s criminal

history or the likelihood that he will commit future crimes,

                                                     5
including   violent   crimes.       The   court   also   properly   rejected

McDougald’s argument that an upward departure effectively denied

McDougald’s acceptance of responsibility, noting that the upward

departure was about his criminal history and his likelihood of

recidivism.

            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

McDougald’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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