UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4747
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY JUNIOR MCNAIR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00325-F-1)
Submitted: December 28, 2009 Decided: January 28, 2010
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Junior McNair appeals his conviction on one
count of possession of a firearm after having been convicted of
a crime punishable by more than one year of imprisonment, in
violation of 18 U.S.C. § 922(g) (2006), and his forty-one month
sentence. We affirm.
On appeal, McNair first argues that his conviction
must be vacated and remanded for a new trial in light of the
Supreme Court’s ruling in Arizona v. Gant, 129 S. Ct. 1710
(2009), because the search of his vehicle and resultant
discovery of the handgun were illegal. In Gant, the Supreme
Court held that a search of a vehicle incident to the arrest of
a recent occupant is justified “only when the arrestee is
unsecured and within reaching distance of the passenger
compartment at the time of the search” or when “it is reasonable
to believe evidence relevant to the crime of arrest might be
found in the vehicle.” Gant, 129 S. Ct. at 1719 (internal
quotation marks omitted).
The Government responds that McNair waived this claim
by failing to file a motion to suppress in the district court,
as required by Fed. R. Crim. P. 12(b)(3)(C). Rule 12(b)(3)(C)
requires that a motion to suppress evidence must be made before
trial. Rule 12(e) states that “[a] party waives any Rule
12(b)(3) defense, objection, or request not raised by the
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deadline the court sets under Rule 12(c) or by any extension the
court provides.” McNair does not dispute the Government’s
assertion that he did not file a motion to suppress the handgun,
and the district court docket does not indicate that such a
motion was filed. As the Government correctly notes, this court
has previously enforced the waiver in Rule 12(e). United States
v. Whorley, 550 F.3d 326, 337 (4th Cir. 2008); United States v.
Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997); United States v.
Ricco, 52 F.3d 58, 62 (4th Cir. 1995). We conclude that McNair
has waived this claim by failing to move in the district court
to suppress the handgun.
McNair next argues that the district court imposed an
unreasonable sentence by upwardly departing one criminal history
category because McNair’s criminal history category of IV under-
represented his prior criminal conduct. This court reviews a
sentence for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review requires appellate consideration of both the procedural
and substantive reasonableness of a sentence. Id. After
determining whether the district court properly calculated the
defendant’s advisory Guidelines range, this court must then
consider whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
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Id. at 49-51. “Regardless of whether the district court imposes
an above, below, or within-Guidelines sentence, it must place on
the record an ‘individualized assessment’ based on the
particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally this court
reviews the substantive reasonableness of the sentence, “taking
into account the ‘totality of the circumstances, including the
extent of any variance from the Guidelines range.’” United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting
Gall, 128 S. Ct. at 597).
A district court may depart upward from the Guidelines
range under USSG § 4A1.3(a) when “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.” USSG § 4A1.3(a)(1).
“Section 4A1.3 was drafted in classic catch-all terms for the
unusual but serious situation where the criminal history
category does not adequately reflect past criminal conduct or
predict future criminal behavior.” United States v. Lawrence,
349 F.3d 724, 730 (4th Cir. 2003). In determining whether a
defendant’s criminal history is underrepresented, a court may
consider an outdated conviction that was not taken into account
in calculating the criminal history score, but only if the
outdated conviction involves similar, or serious dissimilar,
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criminal conduct. See USSG § 4A1.2, cmt. (n.8); United States
v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992). “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the ‘degree of
the variance’; thus, ‘a major departure should be supported by a
more significant justification than a minor one.’” United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting
Gall, 128 S. Ct. at 597).
Here, McNair does not challenge the procedural
reasonableness of the sentence; he does not allege that the
district court erred in its calculation of the Guidelines range,
failed to adequately explain its sentence, or failed to apply
the § 3553(a) factors. Instead, McNair attacks the substantive
reasonableness of the sentence, contending that the recommended
Guidelines range adequately accounts for his criminal history
and his addictions. When reviewing substantive reasonableness,
this court “may consider the extent of the deviation [from the
recommended Guidelines range], but must give due deference to
the district court’s decision that the § 3553(a) factors, as a
whole, justify the extent of the variance.” Gall, 552 U.S. at
51. That this court would have reached a different result in
the first instance is insufficient reason to reverse the
district court’s sentence. Id. Our review of the record leads
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us to conclude that the district court’s departure was supported
by the evidence and that the resulting sentence was reasonable.
Accordingly, we affirm McNair’s conviction and
sentence. 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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