UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORNELIUS KEITH SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00076-FL-1)
Submitted: October 31, 2012 Decided: December 11, 2012
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Keith Smith pled guilty to possession with
intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1) (2006) (Count One) and using and carrying a firearm
during and in relation to, and possession in furtherance of, a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)
(2006) (Count Three). He was sentenced as a career offender,
U.S. Sentencing Guidelines Manual § 4B1.1 (2011), to a term of
267 months on Count One and a consecutive sixty months on Count
Three, a total sentence of 327 months. His sentence was vacated
on appeal in light of United States v. Simmons, 649 F.3d 237
(4th Cir. 2011), and Smith was resentenced in December 2011. He
no longer qualified for sentencing as a career offender;
however, the district court departed upward pursuant to USSG
§ 4A1.3, p.s., and imposed a sentence of 175 months on Count One
and a consecutive sixty months on Count Three, for a total
sentence of 235 months. Smith appeals, arguing that the upward
departure resulted in an unreasonable sentence. We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard, Gall v. United States, 552 U.S. 38, 51
(2007), which requires consideration of both the procedural and
substantive reasonableness of a sentence. Id.; see United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A
“deferential abuse-of-discretion standard applies to any
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sentence, whether inside, just outside, or significantly outside
the Guidelines range.” United States v. Rivera-Santana, 668
F.3d 95, 100-01 (4th Cir.) (internal citation and quotation
marks omitted), cert. denied, ___ S. Ct. ___, 2012 WL 2805025
(U.S. Oct. 1, 2012); United States v. Diosdado-Star, 630 F.3d
359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).
The district court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “set
forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis” for
its decision. Diosdado-Star, 630 F.3d at 364 (citing Rita v.
United States, 551 U.S. 338, 356 (2007)).
A district court may depart upward from the applicable
Guidelines range 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.” USSG § 4A1.3(a)(1); see United States v. Whorley, 550
F.3d 326, 341 (4th Cir. 2008) (noting that an under-represented
criminal history category is an encouraged basis for departure).
To determine whether a departure sentence is appropriate in such
circumstances, the Guidelines state that a court may consider
prior sentences not used in the criminal history calculation,
prior sentences of “substantially more than one year” for
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independent crimes committed at different times, prior similar
misconduct resolved by civil or administrative adjudication,
charges pending at the time of the offense, or prior, similar
conduct that did not result in a conviction. USSG
§ 4A1.3(a)(2).
Smith contends that the court erred in that it failed
to provide a specific reason for each offense level that it
rejected, failed to check any of the boxes in Part V of the
sealed statement of reasons to explain its reasons for the
departure, and failed to consider the minor nature of many of
his prior offenses. His arguments are without merit. We do not
“require a sentencing judge to move only one” offense level at a
time, rejecting “each and every intervening level.” United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (quotations
omitted). However, the court is required to explain adequately
its decision to depart and to relate its reason for the extent
of the departure to the structure of the Guidelines. United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). The court did so at the sentencing hearing, its failure
to check the box for a § 4A1.3 departure on the statement of
reasons notwithstanding. The court noted Smith’s record of “a
variety of petty crimes and misdemeanors,” but explained that
Smith’s record of serious offenses and the likelihood of
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recidivism justified a departure. We conclude that Smith has
not shown significant procedural error by the district court.
We therefore affirm the district court’s judgment. 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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