                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 07-4726



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WILLIE LAMARK WATERS, a/k/a Mark, a/k/a Boom
Boom, a/k/a Bang ‘em up,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cr-00022-JBF)


Submitted:   April 22, 2008                   Decided:   June 6, 2008


Before MICHAEL and DUNCAN, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Alexandria,
Virginia, Keith Loren Kimball, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Alexandria,
Virginia, James Ashford Metcalfe, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Appellant Willie Lamark Waters (“Waters”) pleaded guilty to

(1) possession and sale of a stolen firearm, in violation of 18

U.S.C. § 922(j); (2) distribution of 2.7 grams of cocaine base

(“crack”), in violation of 21 U.S.C. § 841(a)(1); (3) possession of

a   firearm   with   an    altered    or       obliterated    serial   number,   in

violation of 18 U.S.C. § 922(k); and (4) carrying a firearm during

and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A).       The district court sentenced Waters to 200

months’ imprisonment for the first three counts and an additional

consecutive 60 months’ imprisonment, mandated by statute, on count

four.   On appeal, Waters challenges the reasonableness of this

sentence.     For the reasons that follow, we affirm.



                                        I.

      Waters was indicted after twice selling firearms, and on one

occasion crack cocaine along with a firearm, to a confidential

informant, and being recorded by the Portsmouth Police Department

and the Alcohol, Tobacco, and Firearms (“ATF”) Task Force in the

process.      He subsequently pleaded guilty to all charges in the

indictment and agreed to the underlying facts.

      Prior to his sentencing, a probation officer prepared Waters’s

pre-sentence report (“PSR”). The PSR listed Waters’s total offense

level   under    the      United     States      Sentencing     Guidelines   (the


                                           3
“Guidelines”)    as    30.       This   included      a   2-level   increase     for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. Specifically,

the PSR alleged that, “[F]ollowing his arrest for the instant

offenses, [Waters] attempted to have a witness murdered so that

[the witness] would not be available to testify against [him].”

J.A. 149.   As a result, the PSR also recommended denying Waters the

offense level reduction for acceptance of responsibility.                        See

U.S.S.G. § 3E1.1 cmt. n.4          (“Conduct resulting in an enhancement

under § 3C1.1 (Obstructing or Impeding the Administration of

Justice) ordinarily indicates that the defendant has not accepted

responsibility       for   his   criminal      conduct.”).       The   PSR   listed

Waters’s “criminal history category” as III, based on his prior

convictions.    The corresponding Guidelines range for Waters’s four

offenses, based on this criminal history category and his offense

level,   was   181    to   211   months       (121   to   151   months,   plus   the

statutorily mandated consecutive sentence of 60 months for his

conviction under 18 U.S.C. § 924(c)(1)(A)--carrying a firearm

during and in relation to a drug trafficking crime).

     At Waters’s sentencing hearing, the government argued for an

upward departure in his criminal history category on the grounds

that category III did not adequately reflect the seriousness of his

actual criminal history and his likelihood of recidivism.                        See

U.S.S.G. § 4A1.3(a)(2)(E).              The government cited a number of

incidents detailed in the PSR, including Waters’s alleged pointing


                                          4
of a handgun at a victim and threatening the victim’s life in

September 2006, which resulted in a dismissed concealed weapons

charge, and Waters’s almost identical conduct in January 2007,

which resulted in a charge of brandishing a firearm which was

subsequently nol pressed.

     In support of the September 2006 allegation, the government

introduced into evidence a police report of the incident and

statements     made   by    the    victim       and    his   mother.     One   of   the

government’s witnesses, ATF Agent Christopher Scott, also testified

to the conversations that he had with those individuals in which

they confirmed the allegations but declined to testify against

Waters.

     As to the January 2007 incident, the government called another

witness, Officer Isaac Lopez of the Suffolk Police Department, who

testified that Waters was accused of pointing a handgun at two

female victims and threatening to fire the handgun into a van

containing the victims as well as several children.                     Officer Lopez

recounted his interviews with the victims and witnesses of the

incident.      Officer Lopez also testified that Waters admitted

involvement in the incident but stated that he had not brandished

a handgun, claiming instead that another individual had fired a

handgun   at   him.        The    government          submitted   the   victims’    and

witnesses’ grand jury testimony to the court.




                                            5
     The government further argued that Waters’s sentence should be

increased due to several aggravating circumstances.     Agent Scott

testified to Waters’s involvement in the violent “Williamstown

Gang.”   In addition to describing several shootings in which the

Williamstown Gang was allegedly involved, Agent Scott described a

video confiscated by police which depicted Waters, along with

several other known gang members, brandishing firearms and flashing

the Williamstown Gang’s signs.       The government submitted still

photos from this video to the court. Agent Scott further testified

that Waters was often seen wearing the colors of the Williamstown

Gang and went by the gang nickname “Bang em up.”

     Most significantly, Agent Scott went on to describe Waters’s

alleged attempt, while incarcerated, to hire a hit man to murder

the government’s principal witness against him. According to Agent

Scott’s testimony, Waters solicited a fellow inmate to locate

someone who would murder the witness for a sum of money.      Waters

told the inmate that he was in contact with his own gang members to

perform the murder but that he needed it done more quickly as his

court date was fast approaching.       The inmate reported Waters’s

request to law enforcement agents who then arranged for Waters to

be contacted by an undercover officer posing as a “hitman.”    In a

recorded telephone conversation, Waters gave detailed instructions

to the undercover officer and stressed that the murder needed to be

carried out immediately due to the imminence of his trial date.


                                 6
Waters agreed to pay $3000 in installments for the crime.                 The

government submitted a transcript of this recorded conversation to

the court along with the supporting investigative summaries.

       Waters did not submit any evidence or otherwise refute the

government’s allegations.          He did, however, argue against the

obstruction of justice enhancement, in favor of the acceptance of

responsibility reduction, and against both of the government’s

motions for upward departures.

       After hearing the above testimony and reviewing the evidence,

the district court first found, by a preponderance of the evidence,

that Waters should receive the U.S.S.G. § 3C1.1 obstruction of

justice enhancement.       The court then denied Waters the acceptance

of responsibility reduction, stating, “The solicitation to murder

one of the government’s chief witnesses in order to prevent him or

her from testifying . . . is clear evidence that he’s not truly

accepting responsibility for all of his criminal conduct.”               J.A.

110.

       The court next found that there was sufficient evidence to

corroborate the allegations that Waters had brandished a firearm

and made violent threats in September 2006 and January 2007, and

was    a   member   of   the   Williamstown   Gang.   Based   on   the    two

“brandishing” incidents, and applying the incremental approach

mandated by U.S.S.G § 4A1.3(a)(4)(B) and United States v. Rusher,




                                      7
966   F.2d    868        (4th   Cir.   1992),1     the   district    court     increased

Waters’s criminal history category from III to IV.                        This upward

departure had the effect of increasing Waters’s Guideline range

from 181 to 211 months to 195 to 228 months.2

      The district court then turned to the sentencing factors in 18

U.S.C.    §   3553(a).           The   government        had   argued   that    Waters’s

“membership         in     a    gang   and   the    extent      of   [his]     attempted

obstruction” made this an “extraordinary” case where an upward

variance in the sentence was appropriate.                        J.A. 120.       Waters,

however, urged the court to vary the sentence downward to only 10

years’, or 120 months’, imprisonment based on his feelings of

remorse,      his    youth,       troubled   childhood,        and   limited     violent

criminal history. The court considered both parties’ arguments and

each § 3553(a) factor and determined that due to “the type of



      1
       Rusher provides the following:

      Once the district court has decided to depart upward in
      the criminal history category, the majority of courts, in
      making their “reasonableness” inquiry, require the judge
      to refer first to the next higher category and allow the
      court to move on to a still higher category only upon a
      finding that the next higher category fails adequately to
      reflect the seriousness of the defendant's record.

966 F.2d at 884.
      2
      At sentencing, the district court failed to include the
obstruction of justice enhancement in its calculation and therefore
misstated that this departure increased Waters’s guideline range to
135 to 168 months. Neither party argues that this misstatement
affected Waters’s ultimate sentence, and it was subsequently
corrected in the court’s final order.

                                             8
obstruction of justice in this particular case [and] the membership

in . . . a very violent gang,” an upward variance was warranted.

The court sentenced Waters to a total of 260 months’ imprisonment

followed   by    a    5-year    period   of    supervised   release.    Waters

challenges this sentence on appeal.



                                         II.

                                         A.

     The Supreme Court has recently clarified the limited scope of

our review of district courts’ sentencing determinations.                It is

now clear that we review all such determinations for abuse of

discretion, whether or not the sentence imposed is within the

advisory Guidelines range.         See Gall v. United States, 128 S. Ct.

586, 597 (2007).         “This abuse of discretion standard of review

involves   two       steps[;]   the   first     examines    the   sentence   for

significant procedural errors, the second looks at the substance of

the sentence.”        United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007) (examining Gall, 128 S. Ct. at 596-97).                  Significant

procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence--including an explanation for any

deviation from the Guidelines range.”             Gall, 128 S. Ct. at 597.


                                          9
      Our substantive review, by contrast, goes to the length and

contours of the sentence imposed.                 When reviewing a sentence for

substantive reasonableness, this court must “take into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range . . . but must give due deference to the

district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.”3                  Id.     This deference is

premised on the district court’s “greater familiarity . . . with

the   individual   case      and   the   individual       defendant,”         and   its

expertise in sentencing matters. Rita v. United States, 127 S. Ct.

2456, 2469 (2007).          Thus, “[t]he fact that we might reasonably

conclude that a different sentence is appropriate is insufficient

to justify reversal of the district court.”                  United States v. Go,

517 F.3d 216, 218 (4th Cir. 2008) (emphasis added).

      Under both prongs of our review, we examine the sentencing

court’s findings of fact for clear error and its legal conclusions

de novo.   See United States v. Osborne, 514 F.3d 377, 387 (4th Cir.

2008).

                                         B.

      Waters   first   asserts      that      the    district    court    committed

procedural     error   by    “selecting       a    sentence    based     on   clearly



      3
      We may not apply a presumption                   of unreasonableness to
sentences outside the Guidelines range.                See Gall, 128 S. Ct. at
597.


                                         10
erroneous facts.”            Gall, 128 S. Ct. at 597.            He contends that the

information underlying the upward departure in his criminal history

level    was    unreliable         and   that   the    court    erred   in     concluding

otherwise.          The government predictably disagrees.

     The       Guidelines         provide    that     “[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.” U.S.S.G.

§   4A1.3(a)(1).            Such information may include evidence that the

defendant       has    engaged      in   significant       “[p]rior     similar     adult

criminal conduct not resulting in a criminal conviction.” U.S.S.G.

§ 4A1.3(a)(2)(E).           When applying these Guidelines provisions in an

advisory manner, the district court may make factual findings, such

as whether information of similar conduct exists and if it is

indeed reliable, using the preponderance of the evidence standard.

See United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007).

We will overturn these findings only if they are clearly erroneous.

See id. at 323.

        Far    from    constituting         clear   error,     the   district     court’s

findings here were amply supported by the testimony of ATF Agent

Scott and Officer Lopez, transcripts of grand jury testimony of

Waters’s several victims and the several witnesses to his criminal

conduct,       as    well    as   photographs       and   police     reports.     Waters


                                              11
presented     absolutely     no    evidence       to   refute   the     allegations.

Further, the court used this wealth of “reliable” information to

increase Waters’s criminal history category by only one level and

explained its reasoning for doing so. In short, the district court

committed no procedural error.

                                           C.

     Waters next contends that the district court erred in imposing

the upward variance resulting in a 260 month sentence instead of

the 228 month Guidelines maximum (after applying the departure).

He argues that the variance was based on factors already accounted

for in calculating the Guidelines range and in the upward departure

discussed above.      We disagree.

     If the district court “decides that an outside-Guidelines

sentence    is   warranted,       [it]    must    consider   the    extent   of   the

deviation     and   ensure    that       the    justification      is   sufficiently

compelling to support the degree of the variance.”                      Gall, 128 S.

Ct. at 597.      This court must uphold such a variance if the district

court’s rationale is “reasonable and premised on the factors set

forth in § 3553(a).”       Pauley, 511 F.3d at 474; see United States v.

Hampton, 441 F.3d 284, 287 (4th Cir. 2006) (“If the district

court’s justifications for the variance sentence are tied to

§ 3553(a) and are plausible, we will uphold the sentence as

reasonable.” (internal quotations omitted)).




                                           12
      Here, the district court considered each § 3553(a) factor

carefully. In particular, when discussing “adequate deterrence and

[the need] to protect the public” under § 3553(a), the court

emphasized Waters’s membership in a “very violent gang” and the

“extent of [his] obstruction of justice”4 as meriting a variance.

J.A. 127-28.           The court’s rationale in this regard was both

“reasonable” and “plausible,” and appropriately cites to factors

which     set    this    case    apart     from    the   “heartland”       of    cases

contemplated by the Guidelines.                 See Koon v. United States, 518

U.S. 81 (1996).         Although, as Waters contends, the court applied

the   obstruction        of   justice     enhancement       when   calculating      his

original Guidelines range, it was not precluded from considering

“the cavalier method” in which Waters planned to have the witness

against him killed and the fact that he was only fortuitously

prevented       from    doing   so   by   the     actions    of    an   informant    in

determining that a variance was in order.                    J.A. 127-28.       As the

district court said repeatedly, “there is obstruction of justice

and there is obstruction of justice.”                Id. (emphasis added).          The

discretion afforded to district courts to fashion the appropriate



      4
      Insofar as Waters challenges the district court’s decision to
give “excessive consideration” to these two factors, Supreme Court
precedent makes clear that “attach[ing] great weight” to a
particular factor or factors is “quite reasonabl[e]” so long as the
sentence imposed is “sufficient, but not greater than necessary,”
to accomplish the goals of sentencing advanced in § 3553. Gall,
128 S. Ct. at 602; 18 U.S.C. § 3553(a); see also Kimbrough, 128 S.
Ct. at 569-70.

                                           13
sentence in each case is due precisely to situations such as this

where the enhancement provided by the Guidelines fails to capture

the gravity and flagrancy of the defendant’s actions.                    See Koon,

518   U.S.    at   99   (“To   ignore      the    district    court’s       special

competence--about the ordinariness or unusualness of a particular

case--would     risk    depriving    [us]    of    an    important       source   of

information, namely, the reactions of the trial judge to the

fact-specific circumstances of the case.” (internal quotations

omitted)).

                                      D.

      Waters’s final contention is that the combination of the

upward departure and the upward variance resulted in an “excessive”

and   “substantively     unreasonable”       sentence,       and   “the     reasons

provided by the district court were simply not so compelling to

justify the length of the sentence.”                    Appellant’s Br. at 20

(internal     quotations    omitted).        Waters       forges    no    specific

challenges to the district court’s reasoning, however, and instead

just emphasizes the sentence’s length and its deviation from the

original Guidelines range. It thus appears that Waters is inviting

us to engage in the type of mathematical calculation and appellate

second-guessing     precluded   by    the    current      abuse    of    discretion

regime.      See Gall, 128 S. Ct. at 597. 595 (“The fact that the

appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the


                                      14
district   court.   .   .   .   We    also   reject   the   use   of    a   rigid

mathematical formula that uses the percentage of a departure as the

standard   for   determining    the    strength   of   the    justifications

required for a specific sentence.”).           On the facts before us, we

cannot say that the sentence imposed here--260 months, only 49

months greater than the upper end of the originally calculated

Guidelines range--is either unreasonable or unwarranted.



                                     III.

     Because we find no abuse of discretion in the district court’s

sentencing determinations, the judgment of the district court is

                                                                       AFFIRMED.




                                      15
