UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHMAEL SEBASTIAN KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00166-FL-1)
Submitted: April 29, 2013 Decided: May 2, 2013
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Ishmael Sebastian Kelly appeals the thirty-month
sentence imposed following his guilty plea to possession of
firearms and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). On appeal, Kelly argues that
the district court’s upward departure resulted in a
substantively unreasonable sentence. We reject this argument
and affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,
552 U.S. 38, 46, 51 (2007). When the district court imposes a
departure or variance sentence, “we consider whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). 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. United States v. Diosdado-Star, 630 F.3d 359, 364
2
(4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)) (alteration omitted), cert. denied, 131 S. Ct. 2946
(2011).
Where, as here, the defendant does not challenge the
procedural reasonableness of his sentence, we review only the
substantive reasonableness of the sentence, applying the abuse-
of-discretion standard. Gall, 552 U.S. at 51; United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In doing so, this
court assesses whether the district court “abused [its]
discretion in determining that the [18 U.S.C.] § 3553(a)
[(2006)] factors supported [the sentence] and justified a
substantial deviation from the Guidelines range.” Gall, 552
U.S. at 56. We must “take into account the totality of the
circumstances, including the extent of [the] variance from the
Guidelines range.” Id. at 51. A more significant “departure
should be supported by a more significant justification.” Id.
at 50.
A district court may depart upward from an 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.”
U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s. (2011);
see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
3
(nothing that an under-representative criminal history category
is an encouraged basis for departure). To determine whether a
departure sentence is appropriate in such circumstances, the
Guidelines state a court may consider, inter alia, prior
sentences not used in the criminal history calculation. USSG
§ 4A1.3(a)(2).
The district court emphasized Kelly’s unscored state
felon-in-possession conviction in upwardly departing. Kelly
argues that the court’s departure to Criminal History Category
IV exaggerated the importance of this unscored conviction
because, had it been scored, it would only have resulted in his
placement in Criminal History Category III. However, the
district court did not rely exclusively on this unscored
conviction to support the upward departure, but also considered
other unscored convictions, the fact that the unscored state
felon-in-possession conviction involved conduct similar to his
current offense, Kelly’s history of other offenses involving
firearms, the danger he posed to the community, and his
recidivism. The court also acknowledged Kelly’s arguments in
mitigation of his sentence. We conclude that the district
court’s decision to depart from the Guidelines was permissible
and that its justification for the extent of its departure were
sufficiently compelling. See United States v. McNeill, 598 F.3d
4
161, 166-67 (4th Cir. 2010) (affirming upward departure under
§ 4A1.3).
Accordingly, we hold the sentence is substantively
reasonable and affirm the district court’s criminal 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
5