UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAKIM RASHEED HANIFAH, a/k/a Bloody Hock,
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-00061-D-1)
Submitted: March 17, 2011 Decided: April 13, 2011
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney,
Jennifer P. May-Parker, Tobin W. Lathan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hakim Rasheed Hanifah pled guilty to one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). He appeals the district
court’s decision to impose an upward departure. He claims the
departure was excessive because it was based, in part, on
conduct that was already incorporated into the Sentencing
Guidelines. Finding no error, we affirm.
An upward departure may be warranted under U.S.
Sentencing Guidelines Manual § 4A1.3 if the sentencing court
finds that a defendant’s criminal history category does not
represent the defendant’s criminal history or the likelihood of
recidivism. United States v. Myers, 589 F.3d 117, 125 (4th Cir.
2009). The Guidelines contemplate a situation in which even
Criminal History Category VI is insufficient to reflect the
seriousness of the defendant’s criminal conduct, in which case
the court may incrementally increase the offense level. See
USSG § 4A1.3(a)(4)(B). The Guidelines further note that an
upward departure may be warranted in the case of a defendant who
has an extensive record of prior assaults, but has received
lenient treatment by the courts. See USSG § 4A1.3 cmt.
background. A court’s decision to impose an upward departure is
reviewed for abuse of discretion. Myers, 589 F.3d at 127. This
court must decide whether the district court acted reasonably
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with respect to the decision to impose an upward departure and
the extent of the departure. United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2008).
We conclude that the district court properly explained
its reasons for applying an upward departure and find that the
decision to impose an upward departure was reasonable. The
court properly took notice of the violent nature of Hanifah’s
past criminal conduct, the leniency he has received from the
courts, his admitted gang membership, and the fact that he
committed an assault while detained awaiting sentencing. We
further conclude that the extent of the departure was
reasonable, given the seriousness of the offense, his history of
assaultive conduct, the fact that there was nothing in the
record to suggest that Hanifah was going to stop his violent
behavior anytime soon and the need to deter him and others from
engaging in similar conduct.
Accordingly, we affirm the 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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