                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4180


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KHALEEL ALI HILLIARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00156-NCT-1)


Submitted:   September 28, 2012           Decided:   October 11, 2012


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, 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Unpublished opinions are not binding precedent in this circuit.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:

            Khaleel Ali Hilliard pleaded guilty to one count of

credit    union    robbery,          in     violation        of    18       U.S.C.    §   2113(a)

(2006),    pursuant       to    a    written         plea    agreement.          Hilliard     was

sentenced in 2006.              As a result of 28 U.S.C.A. § 2255 (West

Supp.     2012)    relief,          Hilliard         was     resentenced,         however     his

sentence was vacated on appeal in light of United States v.

Simmons,     649        F.3d    237       (4th       Cir.     2011).            Hilliard     was

re-sentenced       on    February         2,   2012.              After      consideration     of

Simmons,    Hilliard       no       longer     qualified          as    a    career    offender.

However,     the        court       imposed          a     two-level         enhancement      for

obstruction of justice, which it previously found at the 2006

sentencing, but did not apply because the enhancement was moot

due to Hilliard’s career offender status.                              At re-sentencing the

court     also    departed          upward      one        criminal         history    category.

Hilliard received a 150-month sentence.                                Finding no error, we

affirm.

            Hilliard       argues         that       the    district         court    improperly

applied a two-level enhancement for obstruction of justice under

U.S. Sentencing Guidelines Manual § 3C1.1 (2006) for his attempt

at having a witness perjure herself regarding whether he kicked

a door in to enter her apartment while fleeing the crime or

whether    she     permitted          him      inside.            He    contends      that   the

conversation he had with Government witness William Greene to

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persuade Karen White to testify that she permitted Hilliard into

the apartment was immaterial to the credit union robbery.                                      In so

arguing,    he    challenges         the    procedural               reasonableness           of   his

sentence.        This     court     reviews          a    sentence         for    reasonableness

“under a deferential abuse-of-discretion standard.”                                          Gall v.

United     States,      552    U.S.        38,       41       (2007).            In    determining

procedural       reasonableness,           we    consider            whether          the    district

court properly calculated the defendant’s Sentencing Guidelines

range.     Id. at 49-51.

            The      court     reviews           the          district       court’s         “factual

findings for clear error and [its] legal conclusions de novo.”

United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).

Properly preserved claims of procedural error are subject to

harmless error review.              United States v. Lynn, 592 F.3d 572, 576

(4th Cir. 2010).

            Under USSG § 3C1.1, “(A) the defendant’s offense level

may   be    increased         two     levels             if    the        defendant         willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration       of    justice        with       respect         to    the    investigation,

prosecution, or sentencing of the instant offense of conviction,

and (B) the obstructive conduct related to (i) the defendant’s

offense    of    conviction         and    any       relevant          conduct;         or    (ii)   a

closely related offense.”                  Material evidence means “evidence,

fact, statement, or information that, if believed, would tend to

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influence       or    affect           the     issue    under    determination.”             USSG

§ 3C1.1 cmt. n.6.                “Obstructive conduct that occurred prior to

the start of the investigation . . . may be covered by this

Guideline       if        the        conduct    was     purposefully         calculated,     and

likely,    to    thwart              the   investigation        or   prosecution”      of    the

offense.        USSG        §    3C1.1       n.1.       The   endangerment       of   innocent

bystanders is sufficient to support an enhancement under USSG

§ 3C1.1 for obstruction of justice.                        United States v. Hicks, 948

F.2d 877, 884 (4th Cir. 1991).

            Hilliard argues that the obstruction of justice in his

case is related to a breaking and entering, but not the credit

union   robbery.                He    also     argues    that    the   conduct       would   not

influence the decision maker.                       He mainly rests this portion of

the argument on the fact that he pleaded guilty on the second

day of trial, therefore the obstruction related to attempting to

suborn perjury by a witness did not affect a decision maker.

The Government argues that Hilliard attempted to suborn perjury

and that it was material and relevant to evidence of guilt and

Hilliard’s initial defense strategy to implicate one of Greene’s

sons in the robbery.

            The district court, while entertaining argument on the

enhancement          at     the        first     sentencing,         found    that    Greene’s

testimony that Hilliard asked him to get Ms. White to change her

story for trial was more likely true than not and was material

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to an attempt to escape and related to consciousness of guilt.

After reviewing the evidence, we conclude that the court did not

err in making these findings, and the enhancement was proper.

              Next, Hilliard argues that the district court erred in

departing          upward      for      under-represented         criminal          history.

Hilliard argues that the court erred in departing upward for

four     reasons.              First,     his       criminal     history          does     not

substantially           under-represent     the      seriousness       of    his    criminal

history or propensity to commit crimes.                        Second, the types of

information identified in the Guideline, such as prior sentences

that were not counted, sentences of substantially more than one

year, pending charges or sentences on other charges, no reliable

information        of    any   prior     similar     conduct     not    resulting         in   a

criminal conviction, are not present in Hilliard’s case.                                   See

USSG    §    4A1.3(a)(2)(A)-(E).            Third,     Hilliard        argues      that    the

court   made       an    improper    assessment       of   the   seriousness         of    his

criminal history by relying, in part, on characteristics of the

current offense and by putting undue weight upon his conviction

for pointing a gun at a police officer when he was seventeen

years       old.        Finally,     Hilliard       argues     that,        had    the    2011

Guidelines been used to calculate his sentence instead of the

2006 Guidelines, the additional two criminal history points for

commission of the offense less than two years after release from

prison would have been eliminated.

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              When         the     district    court    imposes      a      departure   or

variance sentence, 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.

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 (4th Cir.)

(citing Rita v. United States, 551 U.S. 338, 356 (2007)), cert.

denied, 131 S. Ct. 2946 (2011).

              A district court may depart upward from the 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.”

USSG § 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d

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

criminal history category is an encouraged basis for departure).

To determine 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,

                                               6
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.            USSG

§ 4A1.3(a)(2), p.s.

            The Guidelines state factors that may be relied upon

in departing upward, but not all of the factors identified need

be   present.        It    is    sufficient     that       the   criminal      history

substantially       under-represents           “the        likelihood       that     the

defendant will commit other crimes.”                  USSG § 4A1.3.         Here, the

district   court     clearly      enumerated     its       reasons    for    departing

upward.    It was heavily influenced by Hilliard’s previous crimes

of violence, including arrest in 1999 for resisting an officer

and then, a year later in 2000, for pointing a revolver directly

at a police officer, and selling drugs while armed.                         The court

also cited the violent elements of the credit union robbery and

getaway.     The court rejected the Government’s position that the

court should move directly to the career offender category after

Simmons    struck    the    crimes    that     qualified         Hilliard     for   the

designation.        However, the court determined that a reasonable

basis of departure would be one criminal history category to

category five.



                                          7
            On appeal, Hilliard essentially challenges the court’s

evaluation    of      the      evidence       and     the     reasonableness      of    the

inferences    drawn      from        his   past      criminal     conduct.        Although

Hilliard disagrees with the court’s characterization of his past

acts, the court did not rely on an improper basis in departing

upward.      Although         the    court    cited     the     circumstances      of   the

current    crime,       there       were     sufficient       reasons     given   without

consideration      of    the    current       circumstances        and,    further,      the

court     discussed      it     to    substantiate          its   determination         that

Hilliard lacked respect for the criminal justice system.                                 We

conclude that the departure was reasonable given the grounds

stated by the court.                 See Diosdado-Star, 630 F.3d at 365-66

(finding that the method of deviation from the Guidelines range—

whether by a departure or by varying—is irrelevant so long as at

least one rationale is justified and reasonable).

            We therefore affirm the 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 aide the decisional process.



                                                                                  AFFIRMED




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