UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESLIE AARON MCKEITHAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00237-D-1)
Submitted: March 7, 2014 Decided: March 21, 2014
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Leslie Aaron McKeithan appeals his 120-month sentence
imposed after he pleaded guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012).
When calculating the advisory Guidelines range, the district
court upwardly departed under U.S. Sentencing Guidelines Manual
(“USSG”) § 4A1.3(a)(1), p.s., and § 5K2.21, p.s. (2012).
McKeithan argues that his sentence is both procedurally and
substantively unreasonable. We affirm.
We review a sentence, even a departure sentence, for
reasonableness, applying a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). In so
doing, we first examine the sentence for “significant procedural
error,” ensuring, among other things, that the district court
did not improperly calculate the advisory Guidelines range, fail
to consider the 18 U.S.C. § 3553(a) factors, select a sentence
based on clearly erroneous facts, or inadequately explain the
chosen sentence. Id. Next, when considering the substantive
reasonableness of the sentence, we “take into account the
totality of the circumstances.” Id. If the sentence is within
or below the Guidelines range, we presume on appeal that the
sentence is reasonable. United States v. Yooho Weon, 722 F.3d
583, 590 (4th Cir. 2013).
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Pursuant to USSG § 4A1.3(a)(1), p.s., a court may
upwardly depart from the Guidelines range if the court
determines “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 addition, under USSG
§ 5K2.21, p.s., “[a] court may depart upward to reflect the
actual seriousness of the offense based on conduct (1) . . .
underlying a potential charge not pursued in the case as part of
a plea agreement or for any other reason; and (2) that did not
enter into the determination of the applicable guideline range.”
We conclude that the district court did not commit
procedural error in exercising its discretion to depart upward.
The district court properly concluded under USSG § 4A1.3, p.s.,
that McKeithan’s criminal history category substantially
underrepresented the seriousness and violent nature of his past
conduct and the likelihood that he will reoffend. Further, the
district court was within its discretion to conclude that two
assaults committed during the course of the charged offense were
not taken into consideration by the Guidelines range and
therefore warranted a departure under USSG § 5K2.21, p.s., to
reflect the actual seriousness of the offense. Moreover, even
if the district court did commit procedural error, we would find
such error harmless because the district court made clear that
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it would impose the same sentence as a variance. See United
States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009).
Lastly, the district court appropriately framed its
sentence with the relevant § 3553(a) factors. A review of the
record indicates that the court thoroughly examined the nature
and circumstances of McKeithan’s offense and his personal
history and characteristics. Highlighting McKeithan’s violent
criminal history and his dismal record on probation, as well as
the violent offense conduct, the court determined that a
substantial sentence was necessary to incapacitate, deter, and
provide just punishment to McKeithan. Based on the district
court’s thorough explanation of its sentence, we conclude that
McKeithan’s sentence is substantively reasonable.
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
this court and argument would not aid the decisional process.
AFFIRMED
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