PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4343
JEFFREY LYNN MYERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(5:06-cr-00033-RLV-1)
Argued: October 27, 2009
Decided: December 16, 2009
Before KING, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Anthony J. TRENGA, United States District
Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge King wrote the opin-
ion, in which Senior Judge Hamilton and Judge Trenga
joined.
2 UNITED STATES v. MYERS
OPINION
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
KING, Circuit Judge:
Jeffrey Lynn Myers pursues this appeal from a 360-month
sentence imposed in the Western District of North Carolina
following his jury convictions on multiple drug offenses.
Myers presents two contentions on appeal: First, that the dis-
trict court erred in excluding certain evidence relating to the
prior criminal conduct of a prosecution witness; and, second,
that the court erred in sentencing him to a prison term in
excess of his properly calculated advisory Guidelines range.
As explained below, we reject those contentions and affirm.
I.
A.
Myers was initially indicted in the Western District of
North Carolina on June 28, 2006. An amended six-count
indictment — the operative charging document here — was
returned on December 19, 2006. It alleged five counts against
Myers: conspiracy to distribute cocaine base, commonly
known as "crack" or "crack cocaine," and cocaine powder, in
contravention of 21 U.S.C. § 846 (Count One); plus four
counts of possession with intent to distribute crack and
cocaine powder, in contravention of 21 U.S.C. § 841(a)(1)
(Counts Two, Three, Four, and Five). An eighteen-year-old
UNITED STATES v. MYERS 3
codefendant named Rachel Couch was charged with the con-
spiracy offense plus a single count of possession with the
intent to distribute crack (Count Six). Myers pleaded not
guilty and was tried by jury in January 2007. Couch pleaded
guilty to both of her charges and testified against Myers. On
January 26, 2007, the jury returned a guilty verdict against
Myers on all five counts.
1.
Myers’s first appellate contention concerns the evidence
underlying his conviction on Count Five. The key prosecution
witness against Myers on that charge, which alleged an
§ 841(a)(1) offense on May 16, 2006, was a man named John
Redmon. Redmon, a convicted felon, had been arrested in
February 2006 on a charge that he sold crack cocaine to an
informant on November 15, 2005. After his arrest, Redmon
contacted David Ramsey, a detective in the Iredell County
Sheriff’s Office, offered to serve as an informant to "work[ ]
[the charges] off," and began to cooperate with the authorities.
J.A. 213. Redmon was never convicted of any charge arising
from the November 2005 drug transaction.
With Redmon’s cooperation, Detective Ramsey arranged
for a controlled drug purchase in which Redmon was to pur-
chase drugs from Myers with $900 in marked cash. This
transaction was completed on May 16, 2006, on Clay Street
in Statesville, North Carolina, a drug-infested area that was
familiar to Redmon. Myers met Redmon on Clay Street,
where Redmon paid Myers the $900 cash for an ounce of
cocaine. Redmon then met with Detective Ramsey at a nearby
rendezvous point. Redmon’s trial testimony — that Myers
sold drugs to him on May 16, 2006 — is the only direct evi-
dence against Myers on Count Five.
During cross-examination, Myers’s lawyer sought to
impeach Redmon with the facts underlying his November
2005 drug transaction and his February 2006 arrest for that
4 UNITED STATES v. MYERS
offense. Redmon admitted that he had been arrested in Febru-
ary 2006, and that his arrest arose from a drug transaction
with an informant in November 2005. Redmon challenged the
accuracy of the police report relating to his arrest, however,
including its assertion that he had advised the informant to
wait while he finished cooking crack, that he had sold the
informant an eight-ball of crack, and that he had secreted
drugs in his mouth during the arrest. To the contrary, Redmon
insisted that he made no such statement to the informant, that
he had not "sold anybody anything," and that he had not
placed anything in his mouth when he was arrested. J.A. 226-
27.
2.
Following Redmon’s testimony, the prosecution called
Detective Ramsey to the witness stand. On cross-examination,
Myers’s lawyer focused on disputing the transaction between
Myers and Redmon on May 16, 2006, which underlies Count
Five. More specifically, the defense lawyer sought to under-
mine Redmon’s credibility, and to show that Myers was not
the source of the cocaine that Redmon returned to Detective
Ramsey after the Clay Street transaction. In that regard, Ram-
sey admitted that Redmon knew other individuals on the Clay
Street block where the drug buy occurred; that Redmon’s sis-
ter resided on that block; that it is easier in that area for non-
outsiders to purchase drugs; and, that "[Redmon] could have
brought drugs from some people." J.A. 297.
B.
At the conclusion of its case-in-chief, the Government
objected to evidence that it expected Myers to present. Specif-
ically, the Government maintained that Myers would call
police officers "in an attempt to impeach Mr. Redmon on a
specific act of criminal conduct," i.e., the November 2005
drug sale that led to Redmon’s arrest in February 2006. J.A.
359. The prosecutor contended that such evidence was inad-
UNITED STATES v. MYERS 5
missible under Federal Rule of Evidence 608(b), which bars
the use of extrinsic evidence to attack a witness’s character
for truthfulness.1 Myers’s lawyer argued, on the other hand,
that such evidence was admissible under Federal Rule of Evi-
dence 404(b), as proof of Redmon’s "opportunity, plan,
knowledge, absence of mistake or accident, all in conformity
with his being a drug dealer at the time and around the time
of this transaction." Id. at 367.2 According to Myers’s lawyer,
the officers he desired to call would testify that Redmon
indeed cooked crack while an informant waited, sold crack to
that informant, and, when arrested, put something in his
mouth that he later identified as ecstasy.
After assessing Myers’s proffer and the contentions of
counsel, the district court ruled in favor of the prosecution,
explaining that the proffer concerned "evidence to which
[Redmon] admitted, being a former crack dealer and having
been arrested as he testified and so forth. So it’s not a matter
of high probative value for the defendant even if it were oth-
erwise admissible." J.A. 366-67. The court also observed that
the proposed evidence would require "a mini trial." Id. at 369.
As a result, the court sustained the objection and barred the
proffered defense evidence. The case against Myers was then
submitted to the jury, which returned its guilty verdict on Jan-
uary 26, 2007.
1
Federal Rule of Evidence 608(b), on which the prosecution based its
objection, provides in pertinent part that
[s]pecific instances of the conduct of a witness, for the purpose
of attacking or supporting the witness’ character for truthfulness,
other than conviction of crime as provided in rule 609, may not
be proved by extrinsic evidence. . . .
2
Federal Rule of Evidence 404(b), on which Myers predicated his argu-
ment of admissibility, provides in pertinent part that
[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of . . . opportunity . . . .
6 UNITED STATES v. MYERS
C.
1.
On March 12, 2008, Myers appeared for his sentencing
hearing. According to the Presentence Investigative Report
(the "PSR"), Myers had an offense level of 30 and a criminal
history category of III, which resulted in an advisory Guide-
lines range of 121 to 151 months of imprisonment. The dis-
trict court adopted the PSR but reduced the drug weight
attributed to Myers, resulting in an offense level of 28 and an
advisory Guidelines range of 97 to 121 months. Myers was
nevertheless subject to a mandatory minimum sentence of 10
years, resulting in a final Guidelines range of 120 to 121
months.
During the sentencing hearing, the prosecution contended
that Myers’s Guidelines range underrepresented his criminal
history. It maintained that, but for the prohibition in the
Guidelines on considering outdated and stale sentences, speci-
fied in section 4A1.2(e), Myers would be sentenced as a
career offender.3 The Government further asserted that three
of Myers’s four prior convictions were outdated only because
3
Section 4A1.2(e) of the Guidelines instructs courts to calculate a defen-
dant’s criminal history by accounting for prior sentences as follows:
(1) Any prior sentence of imprisonment exceeding one year and
one month that was imposed within fifteen years of the defen-
dant’s commencement of the instant offense is counted. Also
count any prior sentence of imprisonment exceeding one year and
one month, whenever imposed, that resulted in the defendant
being incarcerated during any part of such fifteen-year period.
....
(3) Any prior sentence not within the time periods specified
above is not counted.
This provision also applies "to the counting of convictions under
§ 4B1.1," the career offender provision. USSG § 4B1.2, app. n.3.
UNITED STATES v. MYERS 7
his criminal career had been interrupted when he was impris-
oned for more than fifteen years between December 1990 and
January 2006. Thus, the prosecution asserted that Myers was
a "de facto" career offender and suggested that the district
court consider the following four convictions, including the
three that were otherwise outdated:
• a 1990 conviction in a federal drug conspiracy
case, resulting in a sentence of 210 months, with
four years supervised release;
• a 1986 conviction for possession with intent to
sell and deliver cocaine, and the sale or delivery
of cocaine, resulting in a sentence of five years;
• a 1985 conviction for felonious possession of a
controlled substance with intent to sell and
deliver, and the sale of cocaine, resulting in a
sentence of five years; and
• a 1979 conviction for robbery and assault with a
deadly weapon, resulting in a sentence of ten
years, with five years probation.4
Under the career offender provision of the Guidelines, how-
ever, Myers’s 1990 conviction was the only one that
"counted," as Myers had been incarcerated on that conviction
within fifteen years of commencing the instant offense of con-
viction. See USSG §§ 4B1.1, 4B1.2.
4
Under the Guidelines instructions for computing a defendant’s criminal
history, sentences that "resulted from offenses contained in the same
charging instrument" or that "were imposed on the same day" are treated
as one sentence. See USSG § 4A1.2(a)(2). Thus, regardless of whether
multiple convictions were involved in these four convictions, we refer to
each of them as a single "conviction."
8 UNITED STATES v. MYERS
2.
Contending that there was a substantial underrepresentation
in the seriousness of Myers’s criminal history, the Govern-
ment argued to the sentencing court that Myers was a de facto
career criminal and requested an upward departure, pursuant
to section 4A1.3 of the Guidelines, or alternatively, an upward
variance.5 The prosecution explained that Myers, who was
forty-three years old when the instant offense of conviction
occurred in 2006, began his criminal career at the age of six-
teen. According to the prosecutor, Myers had been "arrested
or cited 24 times since 1979, eight of which resulted in con-
victions," and only one of which was not deemed stale by the
Guidelines. J.A. 539. The prosecutor stressed that Myers was
a recidivist, asserting that "[e]very time [Myers] gets out, he
gets into further trouble." Id. She explained that Myers "had
done all of this federal time and within a month of getting out
he’s back in the drug game," referring to the fact that Myers
had been last released from prison in January 2006, and
almost immediately became involved in the instant offense of
conviction, for which he was arrested in June 2006. Id.
The prosecution also argued for an increased sentence pred-
icated on the nature of the instant offense of conviction,
emphasizing that Myers was responsible for getting codefen-
dant Couch, an eighteen-year-old woman, involved in his
drug activities. The prosecutor emphasized that Myers "is not
only a user of drugs, he’s a user of people," arguing that
Myers had manipulated "a very malleable, vulnerable young
female . . . into selling drugs for him." J.A. 539-40. In her oral
presentation, however, the prosecutor mistakenly referred to
Couch as a "high school student." Id. at 540. This mischarac-
5
Section 4A1.3 of the Guidelines provides, in pertinent part, that "[i]f
reliable information indicates that the defendant’s criminal history cate-
gory substantially underrepresents the seriousness of the defendant’s crim-
inal history or the likelihood that the defendant will commit other crimes,
an upward departure may be warranted."
UNITED STATES v. MYERS 9
terization was then amplified, with the prosecutor also refer-
ring to Couch as "a high school girl," whom Myers had
manipulated into "sell[ing] his dope." Id. at 546.
Although the district court did not characterize Couch as a
high school student during the sentencing hearing, it stated
that "[Myers] was putting drugs into schools through an 18-
year-old." J.A. 586. And Myers’s lawyer failed to object to
the prosecution’s references to Couch as a "high school stu-
dent," or to the court’s statement that Myers "put[ ] drugs into
schools" through Couch. Soon thereafter, however, the prose-
cutor sought to correct her misstatement, explaining that the
Government "just wanted to clarify for the record [that
Couch] was not in high school. She was in beauty school, col-
lege at the time. . . . And the drugs she was distributing was
at the time she was at beauty school." Id. The court
responded, "assuming that is an accurate statement, the analy-
sis remains the same." Id. Neither party made any additional
comment on the court’s characterization of the facts.
The sentencing court then ruled from the bench that an
upward departure was warranted, explaining that "the defen-
dant has a serious record which would have been scored at 18
points were it not for the age of the offenses." J.A. 582-83.
The court first recognized that Myers’s earlier three sentences
were stale for career offender purposes because Myers had
been in custody from 1990 to 2006. It then observed that
Myers’s "term in prison did not serve to correct his behavior
with respect to a law-abiding disposition," as evidenced by his
involvement in the instant offense of conviction "within a
month of his release, and while he was on supervised release."
Id. at 583. Thus, the court found Myers’s past record to be
"very serious," that his conduct demonstrated that he was a
"serious risk for recidivism," and that there was a "need to
protect the public." Id.
The district court concluded that had Myers’s other three
convictions been counted, he would have had 18 criminal his-
10 UNITED STATES v. MYERS
tory points and a resulting criminal history category of VI.
Importantly, Myers would have been classified as a career
offender, with a criminal history category of VI and an
offense level of 37, subject to imprisonment for 360 months
to life. As the court explained, because the "seriousness of the
offense requires the court’s sentence to promote respect for
the law and provide just punishment," as well as "adequate
deterrence," it was "utilizing the character and nature of the
guidelines, and particularly the career offender category, to
put the defendant at this sentencing level he finds himself in."
J.A. 586.6 After deciding to make an upward departure, the
district court sentenced Myers to 360 months on each of his
five convictions, to run concurrently with each other, plus
eight years of supervised release.7
Myers thereafter filed a timely notice of appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review the evidentiary rulings of a district court for
abuse of discretion. See United States v. Queen, 132 F.3d 991,
995 (4th Cir. 1997). A trial court’s exercise of such discretion
is "entitled to substantial deference," United States v. Murray,
65 F.3d 1161, 1170 (4th Cir. 1995), and "will be upheld so
long as it is not ‘arbitrary or irrational,’" United States v. Hill,
322 F.3d 301, 306 (4th Cir. 2003) (quoting United States v.
Weaver, 282 F.3d 302, 313 (4th Cir. 2002)).
6
During the sentencing hearing, the court observed that, "if [the career
offender] departure were not applied, the court would then move to the
question of variance under [18 U.S.C. §] 3553(a)," which the court
believed would also support a sentence equivalent to an offense level of
37. J.A. 583-84. Because we affirm the court’s upward departure, how-
ever, we need not determine whether the challenged sentence could be jus-
tified as a variance.
7
Because Myers resumed his criminal career in early 2006, almost
immediately upon being released from his 1990 sentence, he violated his
conditions of supervised release, for which Myers was also sentenced to
33 months.
UNITED STATES v. MYERS 11
We are obliged to review a sentence imposed by a district
court for reasonableness, applying an abuse of discretion stan-
dard. Gall v. United States, 128 S. Ct. 586, 594 (2007). This
standard of review encompasses both procedural and substan-
tive reasonableness. Id. at 597. We first ensure that the court
committed no significant procedural error, "such as failing to
calculate (or improperly calculating) the Guidelines range . . .
[or] selecting a sentence based on clearly erroneous facts." Id.
If no procedural error was committed, we review the sentence
for substantive reasonableness, taking into account the "total-
ity of the circumstances." Id. Indeed, "an appellate court must
defer to the trial court and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court." United States v. Evans, 526
F.3d 155, 160 (4th Cir. 2008).
III.
Myers presents two contentions on appeal. His first conten-
tion concerns the trial court’s exclusion of the evidence he
sought to introduce with respect to Redmon. Myers also con-
tends that he is entitled to be resentenced, as the court’s
upward departure was both procedurally and substantively
unreasonable. We address these contentions in turn.
A.
First, Myers maintains that the district court erred by
excluding the evidence he intended to present concerning
Redmon’s sale of crack to an informant in November 2005
and Redmon’s arrest in February 2006, and that this evidenti-
ary error contravened his constitutional rights to present evi-
dence in his defense. Myers argues that the evidence he
sought to present was "reverse 404(b)" evidence, which
would have undermined the prosecution’s case on Count Five
by showing that Redmon was a drug dealer who could have
obtained elsewhere the cocaine that he claims to have pur-
chased from Myers for $900. Thus, Myers contends that the
12 UNITED STATES v. MYERS
proffered evidence was admissible under Rule 404(b), which
authorizes the admission of a witness’s other crimes or acts
for certain limited purposes. The Government, on the other
hand, contends that the court properly ruled that the prejudi-
cial nature of the proffered evidence substantially outweighed
its probative value, if any, and that the court did not abuse its
discretion in so ruling.
Rule 404(b) authorizes the admission of evidence of a wit-
ness’s other wrongs, acts, or crimes "for defensive purposes
if it tends, alone or with other evidence, to negate the defen-
dant’s guilt of the crime charged against him." United States
v. Montelongo, 420 F.3d 1169, 1174 (10th Cir. 2005) (identi-
fying such evidence as "reverse 404(b)" evidence) (internal
quotation marks omitted). Such evidence can be admitted
under Rule 404(b) when, inter alia, its probative value is not
substantially outweighed by its prejudicial nature under the
balancing test of Federal Rule of Evidence 403. See Queen,
132 F.3d at 995, 997.8
Put simply, we are obliged to reject Myers’s contention that
the district court abused its discretion in excluding the reverse
404(b) evidence.9 In short, the court determined that the evi-
8
Pursuant to Rule 403, relevant evidence may nevertheless be excluded
by the trial court "if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presenta-
tion of cumulative evidence."
9
As noted, Myers also maintains that the court’s exclusion of his prof-
fered evidence contravened his Fifth and Sixth Amendment rights to pres-
ent evidence in his defense. Because Myers failed to preserve this
contention below, however, it is reviewed for plain error only, and we may
grant relief only if: (1) there is an "error"; (2) the error is "plain"; (3) the
error affects the defendant’s "substantial rights"; and, (4) the error "seri-
ously affect[s] the fairness, integrity or public reputation of [the] judicial
proceedings." United States v. Olano, 507 U.S. 725, 732 (1993). In Cham-
bers v. Mississippi, the Supreme Court recognized that criminal defen-
dants are bound by the "established rules of procedure and evidence
UNITED STATES v. MYERS 13
dence — that Redmon could readily have purchased cocaine
from someone else — had already been presented to the jury.
The jury had heard evidence that Redmon was a convicted
drug felon, that he had recently been charged with selling
drugs to an informant, and that he otherwise had access to
drugs in the area where the Count Five transaction occurred.
Thus, the trial court was within its discretion to rule as it did,
that further evidence on this issue was not "of high probative
value," and that it would result in a "mini trial." J.A. 366, 369.10
B.
Next, Myers challenges his sentence, contending that it is
both procedurally and substantively unreasonable. First,
Myers asserts that the district court committed a procedural
error by predicating his sentence, at least in part, on an incor-
rect finding of fact — that Myers had put drugs "into schools"
through an 18-year-old student. Second, Myers asserts that the
court imposed a substantively unreasonable sentence by uti-
lizing his outdated prior convictions to enhance the sentence
imposed, treating Myers as if he were a career offender. We
assess these sentencing contentions in turn.
designed to assure both fairness and reliability in the ascertainment of
guilt and innocence." 410 U.S. 284, 302 (1973). Accordingly, there is no
constitutional error when a trial court properly applies the rules of evi-
dence to determine that the prejudicial effect of proffered evidence sub-
stantially outweighs its probative value. As we conclude that the district
court properly applied the applicable rules of evidence, Myers’s claim of
constitutional error fails to satisfy the first prong of the plain error test.
10
Although the district court acted within its discretion in excluding the
proffered evidence, any error in that regard would probably have been
harmless in any event, as the evidentiary contention is solely linked to
Count Five and Myers’s sentencing as a de facto career criminal was unaf-
fected by Count Five.
14 UNITED STATES v. MYERS
1.
First, Myers contends that the sentencing court made a
clearly erroneous finding of fact when it declared that he had
put drugs "into schools" through his 18-year-old co-
conspirator, Ms. Couch — a fact that was also mentioned in
the court’s written statement of reasons for its sentence. J.A.
586, 692. Any error made by the court in that respect is harm-
less, however, because it departed upward on the basis of
Myers’s criminal history and recidivism and sentenced him as
if he were a career offender. That upward departure was in no
way predicated on the court’s assertedly mistaken observation
that Myers had put drugs "into schools" through Couch. Thus,
any such factual error is necessarily harmless.
2.
Myers also asserts that his sentence was substantively
unreasonable because the district court’s upward departure
was necessarily erroneous. In pursuing this contention, he
argues that all but one of the four sentences considered by the
court in making the upward departure were too outdated to
qualify as predicate convictions under the career offender pro-
vision of the Guidelines. According to Myers, therefore, his
sentence should not have been enhanced because he lacked
the requisite number of qualifying predicate convictions.11
Thus, he contends that the court abused its discretion in mak-
ing the upward departure.
An upward departure may be warranted when a sentencing
court finds a defendant’s criminal history category to inade-
quately represent his criminal history or his likelihood of
11
Myers does not claim that his instant offense of conviction or his pred-
icate offenses are otherwise insufficient to support sentencing him as a
career offender. Thus, his challenge to the upward departure is predicated
entirely on the prohibition on considering outdated convictions and sen-
tences contained in section 4A1.2(e) of the Guidelines.
UNITED STATES v. MYERS 15
recidivism. See USSG § 4A1.3. Although section 4A1.2(e) of
the Guidelines prohibits considering outdated convictions and
sentences in initially determining the advisory Guidelines
range, such convictions and sentences can justify an upward
departure for inadequate criminal history: "If the court finds
that a sentence imposed outside this time period is evidence
of similar, or serious dissimilar, criminal conduct, the court
may consider this information in determining whether an
upward departure is warranted under § 4A1.3 [the inadequate
criminal history provision]." Id. § 4A1.2(e), app. n.8. More-
over, where "underlying past criminal conduct demonstrates
that the defendant would be sentenced as a career offender but
for the fact that one or both of the prior predicate convictions"
was not counted, the sentencing court may "depart directly to
the career offender guideline range." United States v. Cash,
983 F.2d 558, 562 (4th Cir. 1992) (authorizing departure to de
facto career offender status where otherwise permissible pred-
icate sentence was disqualified as constitutionally infirm); see
United States v. Lawrence, 349 F.3d 724, 729 (4th Cir. 2003)
(approving departure to de facto career offender status where
convictions consolidated for sentencing were not counted sep-
arately).
For an upward departure to de facto career offender status
to be permissible, "the defendant has to have been convicted
of two prior crimes each of which constitutes [a career
offender predicate offense]." United States v. Harrison, 58
F.3d 115, 118 (4th Cir. 1995). According to the Guidelines,
career offender status is warranted
if (1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a con-
trolled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense.
16 UNITED STATES v. MYERS
USSG § 4B1.1(a).
In assessing the totality of Myers’s past criminal conduct
and threat of recidivism, the district court found that an
upward departure under section 4A1.3 was warranted, and
that a sentence predicated on that departure would satisfy the
18 U.S.C. § 3553(a) sentencing factors.12 In that regard, the
court found that Myers had a "serious criminal record," but
that only one of his four previous convictions had been
counted in his PSR due to his intervening term of imprison-
ment from 1990 to 2006. J.A. 582-83, 692. The court recog-
nized that, but for the dates of his earlier convictions, Myers
would have had three more career offender convictions. Two
of these earlier convictions (the 1985 and 1986 convictions)
are for serious drug offenses, similar to the instant offense of
conviction, while the third earlier conviction (the 1979 con-
viction) is for a dissimilar, but serious, violent felony. Next,
the court found that, despite Myers’s incarceration from 1990
to 2006, he had not been rehabilitated. For example, Myers
became involved in the instant offense of conviction almost
immediately after being released from prison in 2006 and
while he was on supervised release. Thus, the court deter-
mined that Myers presented a "serious risk for recidivism." Id.
at 583, 692. On these facts, which were thoroughly articulated
at the sentencing hearing and in the court’s written statement
of reasons, the court did not abuse its discretion in ruling that
an upward departure under section 4A1.3 was warranted.
Finally, Myers contends that we have heretofore approved
of an upward departure to the de facto career offender level
only where a prior conviction has not been counted because
12
Section 3553(a) of title 18 outlines the "factors to be considered in
imposing a sentence." 18 U.S.C. § 3553(a). Such factors include, for
example, the following "the nature and circumstances of the offense and
the history and characteristics of the defendant"; "the need for the sentence
imposed . . . to afford adequate deterrence to criminal conduct . . . [and]
to protect the public from further crimes of the defendant"; and, "the kinds
of sentences available." Id.
UNITED STATES v. MYERS 17
of a constitutional infirmity or because two or more prior
offenses were consolidated for sentencing. See Cash, 983
F.2d at 563; Lawrence, 349 F.3d at 729. This argument also
fails, however, because we have never recognized that those
are the only circumstances where such a departure is appropri-
ate. Cf. United States v. Harris, 241 F. App’x 88, 91 (4th Cir.
2007) (unpublished) (approving departure to de facto career
offender status where approximately forty prior offenses were
uncounted as stale under section 4A1.2(e) of the Guidelines);
United States v. Cooper, 15 F. App’x 115, 116 (4th Cir. 2001)
(unpublished) (finding no plain error where court sentenced
defendant as de facto career offender based on outdated con-
victions). Indeed, the application notes to the relevant Guide-
lines provisions specifically provide that outdated sentences
can support an upward departure for an inadequate criminal
history. See USSG § 4A1.2(e), app. n.8. Because three of
Myers’s stale sentences are for similar, or serious dissimilar,
conduct, the court did not abuse its discretion in connection
with the upward departure.
IV.
Pursuant to the foregoing, we reject each of Myers’s appel-
late contentions and affirm the judgment.
AFFIRMED