PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-5054
RASHAD LATRON KING,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, Chief District Judge.
(2:06-cr-00973-DCN-1)
Argued: December 9, 2011
Decided: March 8, 2012
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Agee and Judge Davis joined.
COUNSEL
ARGUED: Ann Briks Walsh, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for
Appellant. Sean Kittrell, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for
2 UNITED STATES v. KING
Appellee. ON BRIEF: William N. Nettles, United States
Attorney, Columbia, South Carolina, for Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
Rashad Latron King was convicted after pleading guilty to
one count of unlawful possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
924(e)(1). On appeal, King contends that the district court
committed three errors at sentencing: 1) concluding that
King’s prior felony conviction under South Carolina law for
pointing and presenting a firearm qualified as a "crime of vio-
lence;" 2) determining that a sentence imposed upon a plea
entered in accordance with North Carolina v. Alford, 400 U.S.
25 (1970), was a "prior sentence" for purposes of the Sentenc-
ing Guidelines; and 3) failing to provide an adequate explana-
tion for the sentence imposed. Upon our review, we affirm the
sentence imposed by the district court.
I.
In August 2006, police officers in Charleston, South Caro-
lina, responded to a report of an ongoing domestic dispute
that involved a physical assault. After arriving at the scene of
the dispute, the officers observed King engaged in an argu-
ment with a female, Kenya Wigfall. The officers investigated
the dispute, and conducted a "records check" of both individu-
als to determine whether there were any outstanding warrants
for their arrest. When the officers discovered that there was
an outstanding warrant for King’s arrest for probation viola-
tions, King attempted to flee but was quickly apprehended.
After King was arrested, the officers conducted a search of
King’s person and found a loaded .357 caliber revolver in his
pocket.
UNITED STATES v. KING 3
In September 2006, a federal grand jury indicted King on
one count of unlawful possession of a firearm by a convicted
felon. In August 2007, King pleaded guilty to the charge,
without the benefit of a plea agreement.1
In September 2010, after King was convicted of the present
offense, a probation officer prepared a final amended presen-
tence report (PSR), which made recommendations to the dis-
trict court regarding the advisory United States Sentencing
Guidelines (Guidelines) calculations and several contested
sentencing issues. King’s extensive criminal record contained
several prior convictions relevant to this appeal. This criminal
record reflected that in July 2005, King was convicted of
pointing and presenting a firearm at another and placing the
victim in fear of her life, in violation of South Carolina Code
§ 16-23-410. King’s record also revealed that in January
2007, he was arrested for murder after firing a gun during an
altercation in which one person was killed. In April 2009,
King entered an Alford plea to involuntary manslaughter
based on this alleged conduct, and was sentenced to a term of
28 months’ imprisonment.
The PSR recommended that King’s 2005 conviction for
pointing and presenting a firearm qualified as a predicate
"crime of violence" under U.S.S.G. § 2K2.1(a)(4)(A), thereby
resulting in a base offense level of 20. The PSR also recom-
mended that three points be assigned to King’s criminal his-
tory score on the basis of his Alford plea to the crime of
involuntary manslaughter.
King objected to both recommendations. He argued that the
pointing and presenting offense did not constitute a "crime of
1
King was arrested by the South Carolina authorities in January 2007
on a murder charge. Upon his conviction of involuntary manslaughter,
King remained in state custody until the end of his 28-month term of
imprisonment. In June 2009, King completed that sentence and was
returned to federal custody.
4 UNITED STATES v. KING
violence." King also asserted that a conviction upon an Alford
plea is not an "adjudication of guilt," as set forth in U.S.S.G.
§ 4A1.2(a)(1), and thus could not have added points to his
criminal history score. Before sentencing, the government
filed a motion for an upward variance or an upward departure,
contending that King was a recidivist offender, and that the
purposes of 18 U.S.C. § 3553(a) would be served only by the
imposition of a sentence above the advisory Guidelines range.
At sentencing, the district court overruled King’s objections
to the PSR, adopted the PSR in all respects, and determined
that King’s advisory Guidelines range was 46 to 57 months’
imprisonment. The district court granted the government’s
motion for an upward variance on the basis of King’s criminal
history, as well as the district court’s conclusion that King
demonstrated a pattern of "increasing violence." The district
court imposed a sentence of 96 months’ imprisonment. King
appeals.
II.
King first argues that his prior South Carolina conviction
for pointing and presenting a firearm does not satisfy the defi-
nition of a "crime of violence" under either of the two rele-
vant clauses of the Guidelines, U.S.S.G. § 4B1.2(a)(1) and
(2). He contends that, therefore, the district court erred in
increasing his base offense level from 14 to 20. According to
King, the pointing and presenting offense does not contain an
element involving "the use, attempted use, or threatened use
of physical force against the person of another," as stated in
the first clause of this Guidelines provision. U.S.S.G.
§ 4B1.2(a)(1). King further maintains that the pointing and
presenting offense does not involve "conduct that presents a
serious potential risk of physical injury to another," as pro-
vided in the second clause of the Guidelines provision,
because pointing and presenting a firearm is not similar to the
listed examples of such crimes in that Guidelines clause.
U.S.S.G. § 4B1.2(a)(2).
UNITED STATES v. KING 5
A.
We review de novo the issue whether a prior conviction
qualifies as a "crime of violence" under the Guidelines for
purposes of a sentencing enhancement. United States v. Jen-
kins, 631 F.3d 680, 682 (4th Cir. 2011). The term "crime of
violence" is defined in the Guidelines as any state or federal
offense punishable by imprisonment for a term exceeding one
year, that
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of phys-
ical injury to another.
U.S.S.G. § 4B1.2(a).
We typically employ the "categorical approach" to deter-
mine whether a prior offense qualifies as a "crime of vio-
lence" under either clause of U.S.S.G. § 4B1.2(a). United
States v. Seay, 553 F.3d 732, 737 (4th Cir. 2009). Under the
categorical approach, we consider the fact of conviction and
the offense "generically," that is, "in terms of how the law
defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion."
Begay v. United States, 553 U.S. 137, 141 (2008); see also
United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998).
For an offense to constitute a "crime of violence" under this
approach, the offense’s full range of proscribed conduct,
including the least culpable proscribed conduct, must fall
within the applicable Guidelines definition of that term.
United States v. Chacon, 533 F.3d 250, 254-55 (4th Cir.
2008).
6 UNITED STATES v. KING
In a "narrow range of cases" when it is "evident from the
statutory definition of the state crime that some violations of
the statute are ‘crimes of violence’ and others are not," we
look beyond the generic elements of the offense to the spe-
cific conduct underlying that prior offense. United States v.
Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008). We apply this
"modified categorical approach" in those narrow circum-
stances to ascertain whether the defendant’s specific conduct
qualifies as a "crime of violence." In making this determina-
tion, we may consider only the record of conviction, which
includes the charging document, the plea agreement, and the
transcript of the plea colloquy, and any explicit factual find-
ings made by the trial court. See United States v. Spence, 661
F.3d 194, 198 (4th Cir. 2011) (citing Shepard v. United
States, 544 U.S. 13, 20 (2005)).
In determining whether King’s 2005 conviction for point-
ing and presenting a firearm is a "crime of violence," within
the meaning of the Guidelines, we consider whether the stat-
ute under which he was convicted, South Carolina Code § 16-
23-410 (Section 16-23-410), prohibits only one type of con-
duct or whether the statute may be violated by different types
of conduct. The statute provides:
It is unlawful for a person to present or point at
another person a loaded or unloaded firearm.
A person who violates the provisions of this section
is guilty of a felony and, upon conviction, must be
fined in the discretion of the court or imprisoned not
more than five years. This section must not be con-
strued to abridge the right of self-defense or to apply
to theatricals or like performances.
Id. (emphasis added). The parties contend, and we agree, that
the plain language of Section 16-23-410 proscribes only one
type of conduct, namely, pointing or presenting a firearm at
UNITED STATES v. KING 7
another.2 This conclusion is supported further by the fact that
a conviction under the statute is uniformly classified as a fel-
ony, with an attendant single range of punishment of impris-
onment up to five years or a fine imposed by the court. See
Chambers v. United States, 555 U.S. 122, 127 (2009) (consid-
ering whether statute provided different offense levels and
ranges of punishment in determining whether categorical or
modified categorical approach should be employed). Accord-
ingly, we apply a categorical approach to determine whether
the offense of pointing and presenting a firearm qualifies as
a "crime of violence" under the Guidelines.
B.
Employing the categorical approach, we consider the issue
whether Section 16-23-410 qualifies under the first clause of
the Guidelines definition of a "crime of violence," as a crime
that "has as an element the use, attempted use, or threatened
use of physical force against the person of another." U.S.S.G.
§ 4B1.2(a)(1). When we consider whether an offense qualifies
as a "crime of violence" under the Guidelines, or as a "violent
felony" under the Armed Career Criminal Act (the ACCA),3
we are "bound by [a state supreme court’s] interpretation of
state law, including its determination of the elements of" the
offense. Johnson v. United States, 130 S. Ct. 1265, 1269
(2010). If the highest court of the state has not decided an
issue of state law, we generally defer to the state’s intermedi-
ate appellate courts on the issue. See Assicurazioni Generali,
S.p.A. v. Neil, 160 F.3d 997, 1002 (4th Cir. 1998) (citing West
v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)).
2
The government also argues, in the alternative, that it would similarly
prevail under the modified categorical approach.
3
We rely on precedents evaluating whether an offense constitutes a
"crime of violence" under the Guidelines interchangeably with precedents
evaluating whether an offense constitutes a "violent felony" under the
ACCA, because the two terms have been defined in a manner that is "sub-
stantively identical." United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir. 2010).
8 UNITED STATES v. KING
The Supreme Court of South Carolina has held that the
offense of pointing and presenting a firearm under Section 16-
23-410 contains three elements: "(1) pointing or presenting;
(2) a loaded or unloaded firearm; (3) at another." State v. Bur-
ton, 589 S.E.2d 6, 8 (S.C. 2003). The Court of Appeals of
South Carolina has interpreted Section 16-23-410 further as
requiring that a defendant must "specifically intend[ ] to pre-
sent a firearm at someone" before a conviction may be sus-
tained under that statute. In re Spencer R., 692 S.E.2d 569,
573 n.2 (S.C. Ct. App. 2010) (emphasis in original).
In addition, the Court of Appeals of South Carolina has
held that Section 16-23-410 requires that the act of pointing
or presenting a firearm be committed in a threatening manner.
Id. at 572-73. In reaching this conclusion, the court surveyed
similar statutes from other states, which prohibit "exhibiting"
or "brandishing" a firearm. Id. at 572. The court concluded
that such other statutes were intended to prohibit "not only the
overt action of pointing or directing a firearm at someone, but
also the more passive action of showing or displaying a fire-
arm in a threatening or menacing manner." Id. Consistent with
the purposes of those similar state statutes, the court inter-
preted the term "to present" as meaning "to offer to view in
a threatening manner, or to show in a threatening manner." Id.
We defer to the South Carolina courts’ interpretation of the
elements of Section 16-23-410, and conclude that an offender
must point, present, or show a firearm at another in a threaten-
ing manner to be convicted of this offense.4 Because King
4
Although the decision in In re Spencer R. only expressly interpreted
the term "to present" in Section 16-23-410, we conclude that the court’s
interpretation that the act of presenting must be done in a threatening man-
ner likewise applies to the term "to point." The court in In re Spencer R.
compared the term "to point," referring to overt actions that are inherently
threatening, to the term "to present," which the court held encompasses
more passive activity but which similarly must be performed in a threaten-
ing manner. Thus, applying the court’s rationale, the two disjunctively
worded terms stand on equal footing by both requiring threatening behav-
ior.
UNITED STATES v. KING 9
was convicted under Section 16-23-410 for pointing and pre-
senting a firearm, he necessarily pointed and presented a fire-
arm in a threatening manner. Thus, we conclude that King’s
conviction for pointing and presenting a firearm in violation
of Section 16-23-410 was for an offense that "has as an ele-
ment the . . . threatened use of physical force against the per-
son of another," U.S.S.G. § 4B1.2(a)(1), and therefore
qualifies as a "crime of violence" under the first clause of the
Guidelines definition of that term.5 Because we conclude that
pointing and presenting a firearm in violation of Section 16-
23-410 qualifies as a crime of violence under the first clause
of the Guidelines definition of that term, we need not address
King’s argument that this offense does not qualify as a crime
of violence under the second clause of the Guidelines defini-
tion.
III.
King next argues that the district court erroneously added
three points to his criminal history score. According to King,
those points should not have been added, because the term of
imprisonment received following his Alford plea to the invol-
untary manslaughter charge does not qualify as a "prior sen-
tence" imposed on an "adjudication of guilt" within the
meaning of U.S.S.G. § 4A1.2(a)(1).
King maintains that a sentence imposed following an
Alford plea is not a "prior sentence" under this Guidelines
provision, because the definition contained in that section
identifies three examples of an "adjudication of guilt," includ-
ing a "guilty plea, trial, or plea of nolo contendere," but fails
5
We note that in support of his position, King cites an unpublished opin-
ion, United States v. Byrd, 400 F. App’x 718 (4th Cir. 2010), which con-
cluded that pointing and presenting a firearm under South Carolina law
does not include an element that physical force be used, attempted, or
threatened before a violation will occur. Id. at 721. However, unpublished
opinions are not binding in this Circuit, see Local Rule 36(b), and, for the
reasons we have expressed, we reach a contrary conclusion.
10 UNITED STATES v. KING
to identify an Alford plea. U.S.S.G. § 4A1.2(a). According to
King, the omission of an Alford plea in this Guidelines provi-
sion was intentional, because the Guidelines reference an
Alford plea elsewhere in a section addressing the sentencing
of organizations. See U.S.S.G. § 8A1.2 n.3(G).
Alternatively, King contends that our recent decision in
United States v. Alston, 611 F.3d 219 (4th Cir. 2010), sup-
ports his position that a term of imprisonment imposed after
an Alford plea does not qualify as a "prior sentence" for pur-
poses of U.S.S.G. § 4A1.2(a)(1). We held in Alston that a
prosecutor’s proffer of the factual basis for an Alford plea
may not be used to identify a prior conviction as a "violent
felony" under the ACCA. 611 F.3d at 227. King contends
that, similarly, an Alford plea may not be used to establish a
prior conviction as a "crime of violence" under the Guide-
lines. We disagree with King’s arguments.
On a challenge to a district court’s application of the
Guidelines, we review questions of law de novo and findings
of fact for clear error. United States v. Sosa-Carabantes, 561
F.3d 256, 259 (4th Cir. 2009). The Guidelines define the dis-
puted term, "prior sentence," as "any sentence previously
imposed upon adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct not part of the
instant offense." U.S.S.G. § 4A1.2(a)(1). The Application
Note to this section of the Guidelines further defines "prior
sentence" as referring to "a sentence imposed prior to sentenc-
ing on the instant offense." U.S.S.G. § 4A1.2 n.1. For each
such "prior sentence" that resulted in a term of imprisonment
exceeding one year and one month, the Guidelines add three
points to a defendant’s criminal history score. U.S.S.G.
§ 4A1.1(a).
An Alford plea is "an arrangement in which a defendant
maintains his innocence but pleads guilty for reasons of self-
interest." United States v. Taylor, 659 F.3d 339, 347 (4th Cir.
2011) (citing Alford, 400 U.S. at 37). A trial court may accept
UNITED STATES v. KING 11
an Alford plea when: (1) the defendant "intelligently con-
cludes that his interests require entry of a guilty plea;" and (2)
"the record before the judge contains strong evidence of
actual guilt." United States v. Mastrapa, 509 F.3d 652, 659
(4th Cir. 2007) (quoting Alford, 400 U.S. at 37) (emphasis
omitted).
The "distinguishing feature" of an Alford plea is that the
defendant does not confirm the factual basis underlying his
plea. Alston, 611 F.3d at 227 (citing United States v. Savage,
542 F.3d 959, 962 (2d Cir. 2008)). The trial court’s evaluation
and ultimate acceptance of an Alford plea ensures "that a
defendant’s ‘protestations of innocence’ do not undermine
confidence that the constitutional requirement that a plea of
guilty be voluntary and intelligent has been satisfied." Taylor,
659 F.3d at 347 (citing Alford, 400 U.S. at 37-39).
The Third Circuit, which has considered the precise issue
currently before us, has concluded that a sentence imposed
after an Alford plea qualifies as a "prior sentence" under
U.S.S.G. § 4A1.2(a) for purposes of calculating an offender’s
criminal history. See United States v. Mackins, 218 F.3d 263,
269 (3d Cir. 2000). Other circuits have held in analogous con-
texts that convictions resulting from Alford pleas can serve as
predicate convictions for purposes of sentencing enhance-
ments. See United States v. Vinton, 631 F.3d 476, 486 (8th
Cir. 2011) (conviction following Alford plea qualifies as con-
viction for a "crime of violence" as defined in U.S.S.G.
§ 4B1.2(a)(1)); United States v. Guerrero-Velasquez, 434
F.3d 1193, 1197-98 (9th Cir. 2006) (conviction following
Alford plea qualifies as conviction for a "crime of violence"
as defined in U.S.S.G. § 2L1.2(b)(1)(A)(ii)); see also Abim-
bola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (holding
that "[a]n Alford plea is a guilty plea," and thus is included as
a "conviction" of an "aggravated felony" under the plain lan-
guage of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A)).
12 UNITED STATES v. KING
Mindful of these decisions, we first consider whether a dis-
trict court’s acceptance of an Alford plea qualifies as an "adju-
dication of guilt" under U.S.S.G. § 4A1.2(a). We conclude
that it does. A court’s acceptance of an Alford plea, like an
acceptance of a guilty plea, indisputably qualifies as an "adju-
dication." The entry of an Alford plea must conform to the
process in which the district court determines how a defen-
dant pleads to a criminal charge and whether the defendant’s
plea is valid. See United States v. Morrow, 914 F.2d 608, 611
(4th Cir. 1990) (in federal court, Alford pleas, like guilty
pleas, must be conducted in compliance with the basic
requirements of Fed. R. Crim. P. 11).
Here, the parties dispute whether a trial court’s acceptance
of an Alford plea qualifies as an "adjudication of guilt." We
conclude that the Alford plea does meet this qualification,
because there must be a factual basis for an Alford plea, and
an Alford plea can only be accepted when the record "contains
strong evidence of actual guilt." Mastrapa, 509 F.3d at 659
(quoting Alford, 400 U.S. at 37). Such a strong factual basis
for guilt is "an essential part" of an Alford plea. Mackins, 218
F.3d at 268. Further, although the entry of an Alford plea per-
mits the defendant to maintain his innocence, the plea is con-
sidered in other respects as a plea of guilty. See Taylor, 659
F.3d at 347 (when entering an Alford plea, a defendant "main-
tains his innocence but pleads guilty for reasons of self-
interest"); see also Alford, 400 U.S. at 37 (acceptance of a
plea pursuant to Alford requires the defendant to have "intelli-
gently concluded that his interests require entry of a guilty
plea"). Accordingly, we conclude that an Alford plea is an
"adjudication of guilt," within the meaning of U.S.S.G.
§ 4A1.2(a)(1).
We disagree that only adjudications of guilt that are listed
in U.S.S.G. § 4A1.2(a)(1), namely, a "guilty plea, trial, or plea
of nolo contendere," fall within the definition in that section.
As we have stated, the "distinguishing feature" of an Alford
plea is that "the defendant does not confirm" the factual basis
UNITED STATES v. KING 13
underlying his plea. Taylor, 659 F.3d at 347. This distinction
is wholly immaterial with respect to the definition of "prior
sentence" in U.S.S.G. § 4A1.2(a)(1). The criminal history
provisions in the Guidelines increase a defendant’s sentencing
range based upon the number and severity of prior convic-
tions, and the length of past sentences of incarceration. See
U.S.S.G. § 4A1.1. A defendant’s entry of an Alford plea does
not affect the adjudication of the defendant’s guilt, nor the
trial court’s imposition of sentence.
Our conclusion is not altered when we consider a comment
to another provision in the Guidelines, which addresses the
sentencing of organizations, and describes the term "prior
criminal adjudication" as meaning "conviction by trial, plea of
guilty (including an Alford plea), or plea of nolo contendere."
U.S.S.G. § 8A1.2 n.3(G). As the Third Circuit observed in
Mackins, this comment to U.S.S.G. § 8A1.2 may simply indi-
cate that the Sentencing Commission has determined that an
Alford plea "is nothing more than a plea of guilty." 218 F.3d
at 268 n.3. Thus, like the Third Circuit, we do not find that
this comment compels a contrary interpretation of the term
"prior sentence" in U.S.S.G. § 4A1.2.
Lastly, we reject King’s argument that our holding in Als-
ton precludes a conviction entered after entry of an Alford
plea from being considered as a "conviction" under the
Guidelines. In Alston, we considered whether a defendant’s
second-degree assault conviction qualified as a conviction for
a "violent felony" under the ACCA, when the conviction was
based on an Alford plea. 611 F.3d at 222. Because a second-
degree assault conviction is not a "violent felony" under the
categorical approach, the district court used the modified cate-
gorical approach and reviewed the transcript of Alston’s
Alford plea hearing to determine the specific factual basis for
the prior conviction. Id. at 223. We held that "a prosecutor’s
proffer of the factual basis for an Alford plea does not satisfy
the requirements of the modified categorical approach"
because the defendant does not admit guilt, or admit or accept
14 UNITED STATES v. KING
the facts proffered by the prosecutor. 611 F.3d at 226 (empha-
sis added).
The issue before us, however, does not require that we
determine the factual basis of King’s prior conviction. Here,
it is the conviction itself that is relevant to our determination
whether the sentence imposed after King’s Alford plea quali-
fied as a "sentence previously imposed upon adjudication of
guilt." U.S.S.G. § 4A1.2(a)(1) (emphasis added). And, as we
explained in Alston, "the Sixth Amendment jury trial right
does not include a right to have a jury find the fact of a prior
conviction." 611 F.3d at 225 (citing Almendarez-Torres v.
United States, 523 U.S. 224, 239-47 (1998)). Thus, we con-
clude that the concerns mandating our holding in Alston are
not present here. Accordingly, we agree with the Third Circuit
that a sentence imposed following an Alford plea qualifies as
a "prior sentence" within the meaning of U.S.S.G. § 4A1.2.
See Mackins, 218 F.3d at 269.
IV.
King additionally argues that the district court imposed a
procedurally unreasonable sentence by granting the govern-
ment’s motion for an upward variance and imposing sentence,
without providing an adequate explanation at the sentencing
hearing. We conclude that the district court did not err.
We review any sentence, whether inside, just outside, or
significantly outside the Guidelines range, under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). However, we must first ensure that the district
court has not committed any "significant procedural error,"
which includes "failing to adequately explain the chosen sen-
tence – including an explanation for any deviation from the
Guidelines range." United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
The district court must select a sentence based on an "indi-
vidualized assessment" of the facts presented. Gall, 552 U.S.
UNITED STATES v. KING 15
at 50. Every sentence requires an adequate explanation.
United States v. Hernandez, 603 F.3d 267, 271 (4th Cir.
2010). When the district court imposes sentence within the
Guidelines, "the explanation need not be elaborate or
lengthy." Id. However, when a district court applies a depar-
ture provision or variance from the Guidelines range based
upon the 18 U.S.C. § 3553(a) factors, "the district court must
give ‘serious consideration to the extent’ of the departure or
variance, and ‘must adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the per-
ception of fair sentencing.’" United States v. Diosdado-Star,
630 F.3d 359, 365 (4th Cir. 2011) (quoting Gall, 552 U.S. at
46, 50). The district court must "state in open court" the par-
ticular reasons supporting its chosen sentence. 18 U.S.C.
§ 3553(c).
King’s argument that he received a procedurally unreason-
able sentence is refuted by the record before us. At the sen-
tencing hearing, the district court stated its reasons for the
chosen sentence and its decision to grant the upward variance,
which plainly were based on the court’s primary concerns
regarding King’s extensive criminal history at the age of 26,
and his pattern of increasing violence. The district court
observed that King "has two juvenile convictions, [and] ten
adult convictions, four of which are violent convictions." In
addition to those convictions, the district court referred to
multiple instances in which King disregarded the terms of his
bond and his probation.
The district court further expressed its determination that
"[King’s] violence is increasing." In support of this conclu-
sion, the district court referenced: 1) King’s conviction in
2003 for failure to stop for a "blue light;" 2) his conviction in
2005 for pointing and presenting a firearm at another; 3) his
conviction in 2007 for the present offense, unlawful posses-
sion of a firearm by a felon, which the court noted was based
upon conduct which "involve[d] guns and violence;" and 4)
King’s criminal activity in 2007, about which the court stated
16 UNITED STATES v. KING
that "[King] kills somebody, [and] pleads to involuntary man-
slaughter."6
The district court also referenced several of the factors con-
tained in 18 U.S.C. § 3553(a). The court explained that the
sentence imposed was "necessary to reflect the seriousness of
the offense and promote respect for the law," to provide "ade-
quate deterrence to criminal conduct, based on the convictions
that I just outlined," and finally, "to protect the public from
further crimes of the defendant, which was certainly apparent
in this situation."
We conclude that the district court adequately explained at
the sentencing hearing its chosen sentence and its decision to
grant an upward variance. Before imposing sentence, the dis-
trict court analyzed King’s criminal history in its entirety, as
well as specific prior convictions, and reasonably concluded
that King’s criminal history demonstrated that he had engaged
in increasingly violent conduct. The district court held that
based on these considerations, an upward variance was appro-
priate. The district court supported the variant sentence by cit-
ing several particular factors of § 3553(a), which the court
determined required the sentence ultimately imposed. 18
U.S.C. § 3553(a)(2). In view of the district court’s analysis,
we conclude that the district court demonstrated reasoned
decision-making and applied the factors of § 3553(a) to the
particular facts and circumstances related to King. See Carter,
564 F.3d at 329.
The district court also stated at the sentencing hearing that
it would issue a written sentencing order further stating the
grounds on which the court resolved King’s objections to the
PSR’s Guidelines calculations, as well as the court’s basis for
the upward variant sentence imposed. In a twelve-page sen-
6
It is unclear from the sentencing transcript whether the district court
also intended to refer to King’s conviction in 2005 for "attempted burglary
second degree."
UNITED STATES v. KING 17
tencing order, the district court explained that King’s sentence
was required based on the § 3553(a) factors previously identi-
fied at the sentencing hearing, the nature of the present
offense, King’s criminal history, and the fact that King’s
"willingness to resort to violence is clearly escalating over
time." In substance, the reasons supporting King’s sentence
stated in the sentencing order reflect in all material respects
the reasons given by the court at the sentencing hearing.
Because we already have concluded that the reasons given at
the hearing adequately explained King’s sentence, we reject
King’s argument that the district court’s issuance of a written
sentencing order failed to afford King an opportunity to
respond to the basis for the variance.
V.
For these reasons, we affirm the sentence imposed by the
district court.
AFFIRMED