UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4826
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN KEON ANDERSON, a/k/a Muscle,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00082-HEH-1)
Submitted: August 26, 2010 Decided: September 15, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia
Beach, Virginia, for Appellant. Neil H. MacBride, United States
Attorney, John S. Davis, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alvin Keon Anderson pleaded guilty to possession of a
firearm after having previously been convicted of a crime
punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Anderson to ninety-six months of imprisonment and he
now appeals. Finding no error, we affirm.
On appeal, Anderson challenges the district court’s
imposition of a departure sentence pursuant to U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2009). We review a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Layton, 564 F.3d 330, 335 (4th Cir.),
cert. denied, 130 S. Ct. 290 (2009). In so doing, we first
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
Gall, 552 U.S. at 51. Finally, this court considers the
substantive reasonableness of the sentence, “taking into account
the totality of the circumstances, including the extent of any
variation from the Guidelines range.” Id.
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Anderson argues that the district court erred in
finding that he had committed a crime, for which he was
previously acquitted by a jury, by a preponderance of the
evidence. Under U.S.S.G. § 4A1.3(a)(1), a district court may
depart upward if “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 . . . .” In deciding whether to depart under this
provision, the court may consider prior similar adult conduct
not resulting in a criminal conviction. U.S.S.G.
§ 4A1.3(a)(2)(E). Moreover, “[p]reponderance of the evidence is
the appropriate standard of proof for sentencing purposes.”
United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009),
cert. denied, 130 S. Ct. 1923 (2010). We have thoroughly
reviewed the record and conclude that the district court's
decision to upwardly depart was based on the proper criteria set
forth in § 4A1.3, the district court properly found the conduct
that formed the basis of the departure by a preponderance of the
evidence, and the extent of the departure is reasonable and
supported.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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