                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4918


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILBERT ROBERT SCHMIDT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (7:09-cr-00167-D-1)


Submitted:   May 16, 2011                     Decided:   June 6, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E.B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:

              Following      his    indictment    in       December      2009,    Wilbert

Robert    Schmidt         pled   guilty,   pursuant         to    his     written     plea

agreement, to two counts of production of child pornography, in

violation      of    18    U.S.C.A.    § 2251(a),      (d)       (West    Supp.     2010).

Schmidt was sentenced to a total of 420 months’ imprisonment,

which resulted from the district court granting the Government’s

motion   for    an     upward      departure   from    his       advisory    Guidelines

range    of   168-210       months’    imprisonment. 1           On    appeal,    Schmidt

challenges      both      the    reasonableness       of    the       district    court’s

decision to depart above his advisory Guidelines range and the

reasonableness of the extent of the departure.                         For the reasons

that follow, we affirm.

              As we have explained, “[N]o matter what provides the

basis for a deviation from the Guidelines range[,] we review the

resulting sentence only for reasonableness.”                          United States v.

Evans, 526 F.3d 155, 164 (4th Cir. 2008).                             In doing so, the

court applies an abuse of discretion standard.                           Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Diosdado-Star,

630 F.3d 359, 363 (4th Cir. 2011).                    In assessing a sentencing


     1
       The district court noted that in the alternative it would
have imposed the same 420-month sentence as a variance sentence
if it had incorrectly calculated the Guidelines range or
incorrectly departed.



                                           2
court’s decision to depart from a defendant’s Guidelines range,

this    court     “consider[s]       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).                  We will find a sentence to

be unreasonable if the sentencing “court provides an inadequate

statement of reasons or relies on improper factors in imposing a

sentence    outside     the    properly         calculated     advisory     sentencing

range.”     Id.

            Schmidt first argues that, because he is sixty-four

years old and in ill-health, a sentence at the high end of the

pre-departure      Guidelines       range       would   have    been   sufficient    to

incapacitate him for most if not all of the remainder of his

natural life.        Thus, Schmidt asserts the district court abused

its discretion in departing upward from that range and that a

420-month sentence is greater than necessary.

            We    conclude     the    district      court      acted   reasonably    in

departing under the three identified guideline provisions.                          The

court     utilized     U.S.    Sentencing          Guidelines      Manual     (“USSG”)

§ 4A1.3,    p.s.     (1998),   to    increase       Schmidt’s     criminal      history

category from I to IV.           Pursuant to this provision, a district

court may depart upward from an applicable Guidelines range if

“reliable       information     indicates         that    the     criminal      history

                                            3
category    does       not   adequately       reflect        the    seriousness      of   the

defendant’s past criminal conduct or the likelihood that the

defendant will commit other crimes.”                         USSG § 4A1.3, p.s.            To

determine whether a departure sentence is appropriate in such

circumstances, the court may consider, inter alia, prior similar

conduct     that      did    not     result       in    a    conviction.         See      USSG

§ 4A1.3(e), p.s.            Plainly, Schmidt’s undetected twenty-plus-year

history of producing child pornography and molesting children

qualifies as a basis for departure under this provision.                                  The

district     court         further     concluded            this    conduct     warranted,

conservatively, eight criminal history points, resulting in a

Category IV criminal history.                 We discern no abuse of discretion

in that conclusion.

            The       district       court    next      increased        Schmidt’s     total

offense level from thirty-five to thirty-nine, pursuant to USSG

§ 5K2.0, p.s. and USSG § 5K2.8, p.s.                           As the district court

discussed       at     length,     the    1998         edition      of   the    Sentencing

Guidelines       did     not     adequately        account         for   the    volume     of

pornographic         pictures      amassed     by      Schmidt,      Schmidt’s      use    of

alcohol    to    weaken      his   victims,       or    the    unusually       heinous    and

degrading conduct in which Schmidt forced his victims to engage.

We   conclude        the     district        court      reasonably        applied      these

departure provisions to increase Schmidt’s total offense level.

See United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009)

                                              4
(explaining that a departure pursuant to USSG § 5K2.0, p.s.,

must be based on a factor related to the offenses charged in the

indictment), cert. denied, 130 S. Ct. 1923 (2010).

           Schmidt next argues the court abused its discretion in

finding such an extensive departure was warranted to deter him

from future criminal activity and to protect the public because

the    unrefuted        record     evidence         demonstrates         that     Schmidt

voluntarily stopped producing child pornography in 1999.                              Thus,

Schmidt   contends       the     court’s      reliance      on   these    two     reasons

constitutes an abuse of discretion.                   Schmidt also asserts that

the   significant        departure       is       unreasonable,     given        that   he

extensively cooperated with the police.

           While    the     extent      of    the    departure    in     this    case    is

significant, we conclude that the court’s sentencing decision is

reasonable in light of Schmidt’s long history of recidivism,

which reflects his manifest disrespect for the law, and the need

to    impose   a    sentence          reflecting      the    seriousness         of     the

underlying offense and to provide just punishment.                         See     Evans,

526 F.3d at 158, 166 (approving a nearly four-fold increase from

the Guidelines sentence).             Further, the district court’s careful

consideration      of    the     18    U.S.C.       § 3553(a)    (2006)     sentencing




                                              5
factors, 2 as well as the court’s meaningful articulation of its

reasons for departing from the Guidelines range, support our

decision to defer to the district court’s determination as to

the extent of the departure.             Diosdado-Star, 630 F.3d at 366-67

(affirming substantive reasonableness of variance sentence six

years     greater   than    Guidelines    range   because    it   was    based   on

district court’s thoughtful examination of the § 3553(a) factors

as a whole).

             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




      2
       Schmidt also contends that the district court failed to
properly weigh the need to provide him with appropriate mental
health treatment.      See 18 U.S.C. § 3553(a)(2)(D).     This
contention is belied by the record, however, as the district
court specifically ordered that, while incarcerated, Schmidt
should receive any such treatment that was available.



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