                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4736


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

JOHN SAUNDERS,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:09-cr-00041-HEH-2)


Submitted:   September 30, 2010            Decided:   November 9, 2010


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David P. Morgan, Richmond, Virginia, for Appellant. Michael
Arlen   Jagels,  Special   Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John       Saunders      pled        guilty     to    two     counts        of

distribution      of    heroin,     and    was    sentenced      to   a   term    of    45

months’ incarceration.         Saunders appealed, and counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that in his view there are no meritorious grounds for

appeal,     but     questioning           whether     Saunders’        sentence        was

reasonable.       Saunders was informed of his right to file a pro se

supplemental brief but has not done so.                   We affirm.

            We review Saunders’ sentence for abuse of discretion.

Gall v. United States, 552 U.S. 38, 51 (2007).                        The first step

in this review requires us to ensure that the district court

committed no significant procedural errors.                       United States v.

Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476 (2008).       Significant procedural errors include “‘failing to

calculate     (or      improperly    calculating)          the   Guidelines      range,

. . . failing to consider the [18 U.S.C.] § 3553(a) factors,

. . . or failing to adequately explain the chosen sentence--

including an explanation for any deviation from the Guidelines

range.’” United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009) (quoting Gall, 552 U.S. at 51).                       We then consider the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                  Gall, 552 U.S. at 51.          When

reviewing a sentence on appeal, we presume a sentence within the

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properly-calculated            Guideline        range   is     reasonable.          United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

            Here,        the      district        court       departed         upward     in

calculating the applicable Guideline range, on the ground that

Saunders’      criminal         history     category          under-represented          the

seriousness      of   his      criminal    history.          USSG    §   4A1.3(a).      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.”

            We    have      reviewed      the    record      and    conclude     that    the

district court’s decision to depart upward was procedurally and

substantively reasonable.              The record reveals that Saunders had

a   criminal     history       category    of     VI,   which      did   not    take    into

account approximately 26 of his prior convictions.                              Saunders’

most recent offenses were committed only four months after he

served a two-year term for violating probation.                          The court noted

that Saunders’ criminal activity over the years was virtually

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unabated,     that      there       was    a   strong    likelihood         that       it       would

continue upon his release, and that prior shorter terms had not

effectively       deterred         his    criminal      conduct.           Thus      the        court

properly     concluded            that    an   upward        departure        from     criminal

history category VI was warranted, and proceeded to employ the

proper methodology for recalculating Saunders’ advisory range to

41 to 51 months.             See USSG § 4A1.3(a)(4)(B).

             In     addition,            the   extent         of     the    departure             was

reasonable.         As we have noted, the two-year term completed by

Saunders     only       a   few    months      before    he        committed    the        instant

offenses     clearly        was    insufficient         to    deter     him    from        further

criminal     acts.          The    Guidelines       sentencing        range     of     9    to    15

months    was     insufficient            to   reflect       the     seriousness           of    his

criminal history, or the likelihood that he would commit future

crimes.      We therefore conclude that the extent of the district

court’s departure was reasonable.                     Further, the district court

considered        the       parties’      arguments          and    relevant       §       3553(a)

factors, including Saunders’ history and characteristics and the

need   for   the     sentence        to    protect      the    public,      and      reasonably

imposed a sentence in the middle of the recalculated advisory

range.     We accordingly conclude that Saunders’ sentence is both

procedurally and substantively reasonable.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

                                                4
appeal.        We    therefore       affirm    the    district        court’s    judgment.

This court requires that counsel inform Saunders in writing of

his right to petition the Supreme Court of the United States for

further review.           If Saunders requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.           Counsel’s motion must state that a copy thereof

was   served        on   Saunders.         Finally,       we   deny   Saunders’       second

motion    for    an      extension    of    time     in    which    to   file    a    pro    se

supplemental brief and 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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