                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4206


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

MARKEITH HART, a/k/a Scrap,

                      Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00207-F-1)


Submitted:   December 17, 2015              Decided:   December 21, 2015


Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C.
WHITE, P.C., Chapel Hill, North Carolina, for Appellant.
Thomas G.   Walker,   United   States   Attorney, Jennifer   P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Markeith Hart appeals from the 87-month sentence imposed

after     he     pleaded         guilty       to     possession      of      an        unregistered

National Firearms Act weapon, in violation of 26 U.S.C. §§ 5841,

5861(d), 5871 (2012).                     The district court departed upward based

on U.S. Sentencing Guidelines Manual §§ 4A1.3, 5K2.21 (2014),

concluding           that        dismissed          conduct      and         a     substantially

underrepresented                criminal      history         supported          the     departure.

Finding no error, we affirm.

     We        review       a     sentence         for   reasonableness,               applying    “a

deferential          abuse-of-discretion                 standard.”       Gall          v.     United

States, 552 U.S. 38, 41 (2007); United States v. Lymas, 781 F.3d

106, 111 (4th Cir. 2015).                      Because Hart did not object to the

upward    departure             at    sentencing,        we    review      for         plain    error

whether        the    court          procedurally        erred    in      departing            upward.

United    States        v.       Olano,       507    U.S.     725,     732       (1993);       United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). *

     Hart argues that the court did not explain why criminal

history         category             IV     substantially         underrepresented                the

     * Hart requested a sentence at the low end of the Guidelines
range established after the upward departure applied.       While
this preserved a challenge to the substantive reasonableness of
the sentence, the court’s determination that Hart qualified for
an upward departure was unchallenged in the objections to the
presentence report and at sentencing.     See Lynn, 592 F.3d at
578.



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seriousness of his criminal history or the likelihood that he

would commit other crimes.                   He further contends that his prior

convictions had already been counted in determining his criminal

history     category       and        were        impermissibly            considered           under

§ 5K2.21    and     that    the       district             court    did    not    identify         any

additional conduct that supported application of § 5K2.21.

     When       reviewing        a     variance             or     departure,          this     court

considers       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. McNeill, 598 F.3d 161, 166 (4th Cir.

2010).      An    upward     departure            may       be     warranted      if     “reliable

information       indicates          that    the       defendant’s          criminal          history

category    significantly            underrepresents               the    seriousness         of   the

defendant’s       criminal           history          or     the     likelihood         that       the

defendant will commit other crimes.”                               USSG § 4A1.3(a)(1).               A

district court may base an upward departure pursuant to § 4A1.3

on a defendant’s prior convictions, even if those convictions

are too old or otherwise not counted in the calculation of the

Sentencing Guidelines range.                 See USSG § 4A1.3(a)(2).

     When the district court applied an upward departure in part

under USSG § 5K2.21, it permissibly relied on the nature and

seriousness of the dismissed count of felon in possession of a

firearm.    Reviewed as a whole, this record supports the court’s

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consideration of the dismissed count and reveals that no conduct

or criminal history was impermissibly double-counted.              Further,

the   court   gave     an   adequate   explanation   of   its   reasons   for

departing     upward    based   on   the   underrepresentation    of   Hart’s

criminal history.       Thus, no error, plain or otherwise, resulted.

      Accordingly, we affirm the sentence.           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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