                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-4984


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN L. GAYLES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00438-HEH-1)


Submitted:   August 26, 2010             Decided:   September 17, 2010


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Kevin C. Nunnally, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kevin L. Gayles was convicted by a jury of possessing

five grams or more of cocaine base (crack), in violation of 21

U.S.C.A. § 844 (West 1999 & Supp. 2010).                      The district court

departed     above     the     sentencing        guideline     range    under     U.S.

Sentencing Guidelines Manual § 4A1.3, p.s. (2008), and sentenced

Gayles to a term of 180 months imprisonment.                   Gayles appeals his

sentence, contending that the district court erred in denying

his   motion     for      a    downward         departure     and     granting    the

government’s upward departure motion.                    He also argues that the

sentence is unreasonable because it is greater than necessary

and failed to provide for his needs.                We affirm.

            Gayles      had     thirty-four         criminal        history     points

resulting      from    two      prior      state    convictions        for    cocaine

trafficking and numerous other offenses, but he had received

consistently lenient sentences.                 Gayles had recently been tried

and acquitted of first degree murder; the jury convicted him of

use of a firearm in connection with the murder.                           At Gayles’

sentencing     hearing,       the    murder     victim’s     girlfriend      testified

that she drove the victim to a meeting with Gayles, waited while

Gayles   and   the    victim        went   behind   an   apartment     building    and

heard several shots, after which Gayles reappeared, robbed her

at gunpoint, and took her car.                    A detective testified that,

before he died in the hospital, the victim identified Gayles by

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his nickname (“Black”) as the one who shot him.                       The district

court decided that the evidence supported a finding that Gayles

was responsible for the armed robbery and carjacking, but that

it would respect the jury’s acquittal of Gayles on the murder

charge.

              The court decided that criminal history category VI

did not adequately reflect Gayles’ criminal conduct.                       The court

considered      the   guideline      ranges    that    would    result      from     an

increase      to   successively      higher    offense    levels      in    criminal

history category VI, and determined that offense level 29, and a

range    of   151-188    months,     was   adequate    but     not   greater      than

necessary to achieve the sentencing objectives set out in 18

U.S.C. § 3553(a) (2006).           The court departed upward * and imposed

a sentence of 180 months imprisonment.

              We review sentences for reasonableness under an abuse

of discretion standard.           Gall v. United States, 552 U.S. 38, 51

(2007).        This     review     requires    consideration         of    both    the

procedural and substantive reasonableness of a sentence.                          Id.;

see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).         Procedural        reasonableness       review    involves          first

determining whether the district court properly calculated the

     *
       Although Gayles consistently refers to his sentence as a
variance, the court departed rather than varied above the
guideline range.



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defendant’s advisory guideline range, then deciding whether the

district court considered the § 3553(a) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the   selected       sentence.      Lynn,    592   F.3d    at   575;    see    United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding

that, while the “individualized assessment need not be elaborate

or lengthy, . . . it must provide a rationale tailored to the

particular case . . . and [be] adequate to permit meaningful

appellate       review.”)        (internal    quotation         marks     omitted).

Finally,      we     review   the    substantive     reasonableness           of   the

sentence, examining “the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).”        United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).

              Here, the district court’s decision to depart above

the guideline range was adequately explained by the court and

supported by the record, given Gayles’ high criminal history

score, the fact that he had not served any significant state

sentence      despite    prior    convictions      for    two   drug    trafficking

offenses, and the court’s finding that he had at the very least

robbed and carjacked the murder victim’s girlfriend.                     The court

structured the departure by increasing the offense level until

it    found    the    appropriate     guideline      range,     as     directed    in

                                         4
§ 4A1.3(a)(4)(B).             In considering the § 3553(a) factors, the

court focused primarily on the need to promote respect for the

law and to protect the community.                        18 U.S.C. § 3553(a)(2)(A),

(C).    The court’s explanation was sufficient under Lynn.

              Gayles     argues      that     a    sentence       within    the    guideline

range    would       better        afford     him        the     opportunity       for    drug

treatment,         further     education,         and     “other    rehabilitation”         to

better ensure that he would not commit other crimes upon his

release.      However, the district court addressed this argument at

sentencing by noting that Gayles’ past probationary sentences

had not produced a good result, and that he would be able to

participate         in   drug      treatment        as    well     as    educational      and

vocational     programs           while   serving        his   federal      sentence.       We

conclude that the sentence was reasonable.

              We     therefore       affirm        the    sentence       imposed     by    the

district    court.           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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