                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4841



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KYMERLE DOWTIN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-05-20-H)


Submitted:   February 28, 2006            Decided:   March 16, 2006


Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Kymerle    Dowtin   appeals    his   forty-four   month   prison

sentence resulting from his conviction for possession of a firearm

after having been convicted of a misdemeanor crime of domestic

violence in violation of 18 U.S.C. § 922(g)(9) (2000).*       Finding no

reversible error, we affirm.

          Dowtin and his ex-girlfriend Daisy Melendez engaged in an

argument after Dowtin brought their son to Melendez’s house.          When

Melendez refused to allow Dowtin to spend the night, Dowtin became

angry and hit her.     Dowtin then pulled a gun out of his pocket,

told her he would shoot her, and then fired one shot into the air

before leaving.     At sentencing, Dowtin did not contest that the

district court properly calculated a sentencing guideline range of

thirty to thirty-seven months’ imprisonment.         The district court

then granted the Government’s motion for an upward departure under

U.S. Sentencing Guidelines Manual § 5K2.6 (2005).           The district

court added two offense levels and found a guideline range of

thirty-seven to forty-six months.        Dowtin received a sentence of

forty-four months’ imprisonment.

          Dowtin claims that the district court erred when it

departed upward from the sentencing guideline range.          A district

court may depart upward from the guideline range under USSG § 5K2.6

if a firearm was used or possessed.        “The extent of the increase


     *
      Dowtin does not appeal his conviction.

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ordinarily should depend on the dangerousness of the weapon, the

manner it which it was used, and the extent to which its use

endangered others.    The discharge of a firearm might warrant a

substantial increase.”   USSG § 5K2.6.   The district court granted

the upward departure because Dowtin “fired the possessed firearm in

the vicinity of a victim holding a child.”

          Dowtin claims that his offense level under USSG § 2K2.1

encompassed his conduct in firing the gun through cross-referencing

to a minor assault under USSG § 2A2.3(a)(1).   Minor assault under

USSG § 2A2.3(a)(1), however, does not take into consideration the

discharging of a firearm during an assault and speaks only to the

threatened use of a firearm.      An upward departure under USSG

§ 5K2.6 was proper to address the fact that Dowtin’s conduct was

more aggravated than a minor assault.

          Dowtin also claims that the amount of upward departure

was unreasonable.    The extent of a departure must be reasonable

under the circumstances.    18 U.S.C. § 3742(f)(2) (2000); United

States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998).   USSG § 5K2.6

explicitly states that the discharge of a firearm might warrant a

substantial increase. The extent of the district court’s departure

was reasonable when compared to other provisions in the guidelines

for enhancements based on the discharge of a firearm.         This

conclusion is bolstered by the fact that the two level increase

resulted in a sentencing range of only nine months above the


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original guideline range, and an actual sentence only seven months

greater than Dowtin could have received absent the departure.

Thus,   because   the   district   court   appropriately   treated   the

guidelines as advisory, calculated and considered the guideline

range, gave a reasonable justification for sentencing above the

guideline range, and weighed the relevant factors under 18 U.S.C.

§ 3553(a) (2000), we find that the sentence it imposed upon Dowtin

was reasonable.

           Accordingly, we 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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