United States v. Seay

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 07-4953
HARRY RONALD SEAY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:06-cr-00084-TLW)

Argued: September 26, 2008

Decided: January 26, 2009

Before WILKINSON, NIEMEYER, and DUNCAN,
Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.

COUNSEL

ARGUED: Russell Warren Mace, III, Myrtle Beach, South
Carolina, for Appellant. Rose Mary Sheppard Parham,
OFFICE OF THE UNITED STATES ATTORNEY, Florence,
South Carolina, for Appellee. ON BRIEF: Kevin F. McDon-
2 UNITED STATES v. SEAY
ald, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina;
Carrie A. Fisher, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South
Carolina, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

After pleading guilty to being a felon in possession of a
firearm, Harry Ronald Seay was sentenced to 96 months’
imprisonment. Challenging his sentence on appeal, Seay con-
tends (1) that his prior felony stalking conviction under North
Carolina General Statutes § 14-277.3 (1999) is not a "crime of
violence" justifying an enhanced offense level under United
States Sentencing Guidelines § 2K2.1; (2) that the district
court erred in admitting, during the sentencing proceeding, a
threat-assessment report and threat-assessment testimony
given by a law enforcement officer; and (3) that the district
court abused its discretion in imposing a variance sentence
above the advisory range of the Sentencing Guidelines.

For the reasons given herein, we reject each argument and
affirm. We hold that felony stalking under North Carolina law
is a crime of violence as defined in § 4B1.2(a) of the Sentenc-
ing Guidelines. We also conclude that any error that the dis-
trict court may have committed in admitting the threat-
assessment report and testimony at sentencing was harmless
because the evidence was cumulative and the district court did
not give significant weight to the report and testimony. And
finally, we conclude that the district court’s variance sentence
was not unreasonable.

I

After South Carolina law enforcement officers stopped
Harry Seay in September 2005 for speeding, they determined
 UNITED STATES v. SEAY 3
that he was driving without insurance. The officers searched
Seay’s vehicle, incident to his arrest, and uncovered a .38 cal-
iber revolver and 50 rounds of ammunition. Seay informed
the officers that he was holding the gun and ammunition for
a female prostitute.

After being indicted for possession by a felon of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), Seay pleaded guilty pursuant to a written plea
agreement.

The presentence report prepared for Seay revealed that
Seay had prior convictions for making harassing telephone
calls to a female in 1997; for misdemeanor stalking involving
shining a spotlight into a woman’s house in 1998; for destroy-
ing his house arrest monitoring system in 1999; for felony
stalking in 1999; for misdemeanor assault with a deadly
weapon in 2000; and for possession of a firearm by a person
having been committed to a mental institution in 2001. The
report determined that Seay’s 1999 conviction for felony
stalking was a "crime of violence" as defined in U.S.S.G.
§ 4B1.2(a) and that therefore his base offense level was level
20 under U.S.S.G. § 2K2.1(a)(4)(A). The report also recom-
mended that Seay receive a three-level reduction of his
offense level under U.S.S.G. § 3E1.1 for acceptance of
responsibility, yielding a final offense level of level 17. This
offense level, combined with Seay’s criminal history category
V, subjected Seay to an advisory Sentencing Guidelines range
of 46 to 57 months’ imprisonment.

Seay filed a motion for a downward departure based on
diminished capacity, and he supported his motion with a 1999
psychologist’s report, prepared by Dr. John F. Warren, III,
which detailed Seay’s bizarre stalking practices but also con-
cluded that Seay’s condition was "treatable."

After Seay filed his motion, South Carolina Law Enforce-
ment Officer Michael Prodan undertook to prepare a "threat
4 UNITED STATES v. SEAY
assessment" of Seay. After reviewing Seay’s record, Prodan
sought authorization to interview Seay from the Assistant
U.S. Attorney and Seay’s counsel. As Officer Prodan testified
during the sentencing proceeding, counsel for Seay "agreed to
this interview . . . . I would not have approached Mr. Seay
without the knowledge of [counsel’s] permission for the inter-
view." The discussions to obtain permission did not address
specifically the purpose of Officer Prodan’s interview, but
Seay’s counsel later stated that he assumed that the interview
was in furtherance of Seay’s agreement to cooperate. The dis-
cussions did, however, indicate that Officer Prodan should
also obtain Seay’s consent before proceeding with the inter-
view. Thus Officer Prodan asked Seay for permission to talk
to him, explaining that "[he] found [Seay] to be a rather inter-
esting individual and that [he] wanted to speak to [Seay]
about his offense and what his behaviors were." Seay con-
sented to the interview, which was tape-recorded. Thereafter,
the government filed a motion seeking an upward variance "to
protect the public from further crimes [by Seay] and to pro-
vide [Seay] with appropriate psychological treatment" and
attached to the motion a copy of Officer Prodan’s threat-
assessment report.

At the sentencing hearing, Seay contended that his 1999
conviction for felony stalking under North Carolina law was
not a "crime of violence," as defined in U.S.S.G. § 4B1.2(a),
and therefore that his offense level should not have been level
20 under U.S.S.G. § 2K2.1(a)(4)(A). He also objected to con-
sideration of Officer Prodan’s report and testimony because
the interview was conducted in violation of his Fifth and Sixth
Amendment rights. Finally, he urged that the court give him
a downward departure based on Dr. Warren’s 1999 report. At
the hearing, the district court received testimony from Officer
Prodan, as well as from Seay. The court then adopted the pre-
sentence report, including its conclusion that felony stalking
in violation of North Carolina law is a crime of violence;
denied Seay’s motion to suppress Officer Prodan’s report and
testimony; denied Seay’s motion for a downward departure;
 UNITED STATES v. SEAY 5
and granted the government’s motion for an upward variance
based on the nature and circumstances of Seay’s offense, his
history and characteristics, and the need to protect the public
from future crimes. The court imposed a five-level upward
variance, to level 22, yielding an advisory Guidelines range of
77 to 96 months’ imprisonment, and sentenced Seay to 96
months’ imprisonment.

From the district court’s judgment, dated September 18,
2007, Seay filed this appeal.

II

Seay contends first that felony stalking, as codified in
North Carolina General Statutes § 14-277.3 (1999), is not a
"crime of violence" under U.S.S.G. § 2K2.1(a)(4)(A), as
defined in U.S.S.G. § 4B1.2(a), and therefore, the district
court erred in setting his base offense level at level 20.

Section 2K2.1(a)(4)(A) of the Sentencing Guidelines fixes
a defendant’s base offense level at level 20 if the defendant
"committed any part of the instant offense subsequent to sus-
taining one felony conviction of . . . a crime of violence,"
U.S.S.G. § 2K2.1(a)(4)(A) (emphasis added), and a "crime of
violence" is defined in U.S.S.G. § 4B1.2(a) as:

any offense under federal or state law, 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.
6 UNITED STATES v. SEAY
The commentary to § 4B1.2, which is also authoritative, see
Stinson v. United States, 508 U.S. 36, 38 (1993); United
States v. Payton, 28 F.3d 17, 19 (4th Cir. 1994), provides an
expanded list of crimes that are crimes of violence, including
"murder, manslaughter, kidnapping, aggravated assault, forc-
ible sex offenses, robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling." U.S.S.G.
§ 4B1.2, cmt. 1.

In determining whether a conviction qualifies as a crime of
violence under the Sentencing Guidelines, we use the "cate-
gorical approach." United States v. Mathias, 482 F.3d 743,
746 (4th Cir. 2007); see also Taylor v. United States, 495 U.S.
575, 600-02 (1990). Under this approach, we consider an
offense "generically" — i.e., "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, 128 S. Ct. 1581, 1584 (2008) (citing Taylor,
495 U.S. at 602). Thus, "the proper inquiry is whether the
conduct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury to
another." James v. United States, 127 S. Ct. 1586, 1597
(2007). At bottom, the categorical approach considers a crime
as defined by the language of the governing statute and pro-
jects the crime’s elements to the heartland of factual circum-
stances criminalized by the statute—the conduct that violates
the elements of the statute "in the ordinary case." Id.

The statute in question here — N.C. Gen. Stat. § 14-277.3
(1999) — criminalizes stalking. It provides that

a person commits the offense of stalking if the per-
son willfully on more than one occasion follows or
is in the presence of another person without legal
purpose and with the intent to cause death or bodily
injury or with the intent to cause emotional distress
by placing that person in reasonable fear of death or
bodily injury.
 UNITED STATES v. SEAY 7
Id. Thus, the statute can be violated with either of two specific
intents. It is violated if the defendant has "the intent to cause
death or bodily injury" to the victim or if the defendant has
"the intent to cause emotional distress by placing that person
in reasonable fear of death or bodily injury." Id. Because the
statute criminalizes more than one type of conduct, we may
look beyond the statutory language to the actual charging doc-
ument controlling the defendant’s conviction to understand
the nature of the offense. See United States v. Kirksey, 138
F.3d 120, 124 (4th Cir. 1998). In this case, the indictment
charged Seay with "unlawfully, willfully and feloniously . . .
on more than one occasion follow[ing] and . . . [being] in the
presence of another person . . . without legal purpose and with
the intent to cause emotional distress by placing this person
in reasonable fear of bodily injury."

Seay argues that the elements of North Carolina’s felony
stalking "did not require that a defendant make a ‘credible
threat’ to the victim. . . . Conduct intended to cause another
reasonable fear of bodily injury does not naturally include the
threatened use of physical force," as required by U.S.S.G.
§ 4B1.2(a)(1). This argument, however, dismisses too quickly
the elements of the offense.

First, to be guilty under the statute, Seay’s conduct had to
be "willful," a requirement that distinguishes his conduct from
negligent or accidental conduct. Second, Seay had to be guilty
of willfully stalking "on more than one occasion." Third, he
had to be found "follow[ing] or [being] in the presence of" his
victim, placing his victim "in . . . fear of . . . bodily injury."
Fourth, his conduct had to be sufficiently egregious to have
placed a "reasonable" person in such fear. See State v. Fere-
bee, 529 S.E.2d 686, 690 (N.C. Ct. App. 2000) (interpreting
"reasonable fear" in the 1993 version of the statute and
instructing trial courts "to ensure that an objective standard,
based on what frightens an ordinary, prudent person under
the same or similar circumstances, is applied rather than a
subjective standard which focuses on the individual victim’s
8 UNITED STATES v. SEAY
fears and apprehensions" (emphasis added)). Finally, Seay
had to have placed his victim in fear of bodily injury "with the
intent to cause emotional distress." See N.C. Gen. Stat. § 14-
277.3 (1999).

It is difficult, if not impossible, to conceive how this con-
duct could have been carried out without threatening by word
or action the use of physical force. The words or actions
would have to be willful and intended to cause the victim’s
distress by actually placing her in fear of bodily harm. While
Seay suggests that the statute does not require that his threat
be credible, he overlooks the statutory requirement that the
conduct must objectively cause distress by placing the person
in fear of bodily harm. See Ferebee, 529 S.E.2d at 690. Will-
fully placing a person in fear of bodily harm is inherently a
threat, as a "threat" is defined to be "an expression of an
intention to inflict evil, injury, or damage on another." Web-
ster’s Third New International Dictionary 2382 (1993).

In short, Seay was convicted of conduct that was purpose-
fully carried out with the intended effect of placing a reason-
ably prudent person in fear of bodily harm. Such conduct
"threatens [the] use of physical force against the person of
another" by words or actions that place that person in fear of
bodily injury and can only be characterized as purposeful,
violent, and aggressive. Accordingly, we conclude that Seay
was convicted of a crime of violence as defined in U.S.S.G.
§ 4B1.2(a)(1).

In addition, we conclude that Seay was convicted of a
crime of violence as defined in U.S.S.G. § 4B1.2(a)(2), in that
it "involve[d] conduct that present[ed] a serious potential risk
of physical injury to another." This language of § 4B1.2(a)(2)
is substantially similar to the definition of the term "violent
felony" in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B)(ii), that the Supreme Court construed in
Begay.
 UNITED STATES v. SEAY 9
In Begay, the Court held that the enumerated examples
given in § 924(e)(2)(B)(ii) (burglary, arson, extortion, or
crimes involving the use of explosives) illustrate the kinds of
crimes that fall within the clause’s scope and thus limit the
catchall clause that includes any other crime that "involves
conduct that presents a serious potential risk of physical
injury." See Begay, 128 S. Ct. at 1586. The Court explained
that the inclusion of the examples "indicates that the statute
covers only similar crimes, rather than every crime that ‘pre-
sents a serious potential risk of physical injury to another.’"
Id. at 1585 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Summariz-
ing crimes that are "similar," the Court said that any other
crime covered by § 924(e)(2)(B)(ii) must involve "purposeful,
violent, and aggressive conduct." Id. at 1586 (internal quota-
tion marks omitted). As § 924(e)(2)(B)(ii)’s language is simi-
lar to the language in U.S.S.G. § 4B1.2(a)(2), we conclude
that Begay’s analysis is applicable to U.S.S.G. § 4B1.2(a)(2).

Because we have concluded that felony stalking as defined
by the North Carolina statute is "purposeful, violent, and
aggressive," it satisfies the requirements in Begay. The North
Carolina statute requires that the specified conduct be carried
out "willfully." Moreover, the defendant must be in the pres-
ence of the victim or following the victim with the victim’s
knowledge such that the defendant’s conduct reasonably
places the victim in "fear of . . . bodily injury." Placing a vic-
tim in fear of psychological harm is not sufficient for a stalk-
ing conviction under North Carolina law. Further, the North
Carolina courts have held that an objective standard applies to
the "reasonable fear" element, precluding conviction for fel-
ony stalking based simply on a victim’s incredulous belief
that he or she faced bodily harm when a reasonable, objective
individual would have suffered no such fear. See Ferebee,
529 S.E.2d at 690. Thus, conduct that deliberately places a
reasonable person in fear of bodily harm is purposeful and
violent, as well as aggressive.

Further, as required by Begay, felony stalking in North Car-
olina is similar "in degree of risk posed" to examples listed in
10 UNITED STATES v. SEAY
§ 4B1.2(a)(2), Begay, 128 S. Ct. at 1585, namely burglary and
extortion. See James, 127 S. Ct. at 1592 (holding that
attempted burglary is a "violent felony" under the Armed
Career Criminal Act because, like the enumerated crimes, it
"create[s] significant risks of bodily injury or confrontation
that might result in bodily injury" (emphasis added)); Begay,
128 S. Ct. at 1586 (noting that "extortion" is "‘purposely’
obtaining property of another through threat of, e.g., inflicting
‘bodily injury’" (quoting ALI Model Penal Code § 223.4
(1985))). Indeed, we submit, North Carolina’s felony stalking
statute presents a greater risk of bodily injury than that pre-
sented by extortion, which Congress explicitly listed as a
crime of violence.

In sum, because conduct violating North Carolina’s felony
stalking statute is purposeful, violent, and aggressive, and
poses a risk similar to—if not greater than—burglary or extor-
tion, stalking involves conduct that presents a serious poten-
tial risk of physical injury to another, and is thus also a crime
of violence under U.S.S.G. § 4B1.2(a)(2).

Seay urges that we follow United States v. Insaulgarat, 378
F.3d 456, 471 (5th Cir. 2004) (holding that Florida’s aggra-
vated stalking law is not a crime of violence), and United
States v. Jones, 231 F.3d 508, 519-20 (9th Cir. 2000) (holding
that California’s stalking law may not be a crime of violence
and remanding for district court’s reconsideration). The diffi-
culty with this position is that the statutes considered in those
cases are materially distinguishable from North Carolina’s
felony stalking statute. The Florida statute considered in
Insaulgarat criminalizes conduct by a defendant who "know-
ingly, willfully, maliciously, and repeatedly follows or
harasses another person." Insaulgarat, 378 F.3d at 468
(emphasis added). The Insaulgarat court noted that because
"there are forms of harassment that . . . do not by their nature
involve conduct that presents a serious risk of physical harm,"
violation of the statute cannot categorically be a crime of vio-
lence. Id. at 470-71. The California stalking statute considered
 UNITED STATES v. SEAY 11
in Jones similarly criminalizes malicious, repeated following
or harassing "with the intent to place that person in reasonable
fear for his or her safety." Jones, 231 F.3d at 519 n.6. Again,
the court noted that a "threat to safety" did not necessarily
involve the threat of physical force, as required under
U.S.S.G. § 4B1.2(a)(1). See id. at 519-20.

Unlike the statutes in Insaulgarat and Jones, the North Car-
olina felony stalking statute requires more than mere harass-
ment. The defendant must act "with the intent to cause
emotional distress by placing that person in reasonable fear
of death or bodily injury." Thus, we conclude that the district
court in this case properly applied U.S.S.G. § 2K2.1(a)(4)(A)
to set Seay’s base offense level at level 20.

III

Seay also challenges the district court’s admission and con-
sideration of Officer Prodan’s risk-assessment report and tes-
timony during sentencing. He contends that the court’s
consideration of this evidence violated his Fifth Amendment
privilege against self-incrimination and his Sixth Amendment
right to effective assistance of counsel.

We note first that both Seay and Seay’s counsel consented
to Seay’s interview with Officer Prodan. While Seay argues
that he did not know that Officer Prodan was conducting a
risk assessment, he was advised of the nature of the questions,
and he did not object to the interview before or after it was
conducted. Seay asserted an objection only when Officer Pro-
dan’s report was submitted to support the government’s posi-
tion to increase Seay’s sentence.

Seay’s counsel asserts, without record support, that he
thought the interview was in furtherance of Seay’s agreement
to cooperate. But he acknowledges that neither the govern-
ment nor Officer Prodan invoked Seay’s agreement to cooper-
12 UNITED STATES v. SEAY
ate, and counsel did not inquire or comment as to the purpose
of the interview when he consented to it.

We need not resolve these questions, however, because we
conclude that any error that may have been committed by the
district court in considering Officer Prodan’s report or testi-
mony was harmless. The district court concluded indepen-
dently of the report and testimony that Seay’s criminal record
of two stalking offenses and two gun offenses, along with
related conduct described in Dr. Warren’s report, presented a
"significant concern" for the court sufficient to support the
sentencing enhancement. When the district court explained
the role that Officer Prodan’s report played in its sentencing
considerations, it observed that the report was not significant.
The court related that Prodan’s report was not "significantly
different" from Dr. Warren’s report, and because Dr. Warren
was a doctor and Officer Prodan was a law enforcement offi-
cer, albeit "well-trained" and "well-experienced," Dr. War-
ren’s report deserved greater weight. As the court explained:

Mr. Prodan is a law enforcement officer. That is
what he is. I am not saying that that colored his testi-
mony; but he is a law enforcement officer, well-
trained, well-experienced.

But Doctor Warren is a doctor who addresses these
kinds of questions. And his report is not a report that
allays some of the fears—or some of the concerns,
I guess is the right way to describe it—that are raised
by what is in that report, in Dr. Warren’s report. . . .

Doctor Warren is a professional in terms of psychol-
ogy, and he is a licensed psychologist with a Ph.D.
He is the one that I gave great weight to his report.

I do not want to, again, diminish what Mr. Prodan
said[ ], but he has told the same kind of mode. Those
 UNITED STATES v. SEAY 13
conclusions can be reached with the information that
is in Doctor Warren’s report.

In short, the district court detailed how Officer Prodan’s
report and testimony were neither necessary nor material to its
conclusion that Seay posed a risk to others. A complete read-
ing of the sentencing transcript reveals that Officer Prodan’s
report was essentially cumulative and stated the obvious as
revealed by Seay’s record and Dr. Warren’s report.

Seay also contends that the government’s use of the Prodan
report to enhance his sentence violated the plea agreement
reached by the government and Seay. The government argues
that Seay had breached the plea agreement through his failure
to disclose truthfully how he obtained the firearm. The district
court did not make a finding as to whether the government
breached the plea agreement in using Officer Prodan’s report
and testimony.

We need not determine whether Seay breached the plea
agreement because we conclude that the interview and its use
were not governed by the agreement. Even though the plea
agreement required Seay to cooperate in the investigation and
prosecution of others and stated that incriminating informa-
tion provided "as a result of the cooperation . . . [would] not
be used against [Seay]," the interview conducted by Officer
Prodan was not to investigate and prosecute crimes against
others, and no one suggested that it was designed to serve that
purpose. To the contrary, Officer Prodan told Seay that he
wanted to learn more about the crime at hand and "what
[Seay’s] behaviors were," making clear that Seay was the sole
focus of the interview. In short, Seay has not demonstrated
any breach by the government of the plea agreement. More-
over, as already noted, the district court did not consider the
report to be significant in fashioning its upward variance.

Finally, Seay argues that the district court should not have
even considered Officer Prodan’s report and testimony
14 UNITED STATES v. SEAY
because Officer Prodan was not an expert under the standards
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 571 (1993). Trial courts have significant discretion
regarding evidentiary matters in sentencing, and in this case,
the district court exercised its discretion in concluding that
Officer Prodan was an expert with respect to the opinions he
gave and in admitting Prodan’s report and testimony. Under
our precedents, "in resolving any dispute concerning a factor
pertinent to the sentencing decision, ‘the court may consider
relevant information without regard to its admissibility under
the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.’" United States v. Hernandez-Villanueva,
473 F.3d 118, 122 (4th Cir. 2007) (quoting U.S.S.G.
§ 6A1.3(a)). In determining whether to vary from a Guide-
lines range, a court "may consider, without limitation, any
information concerning the background, character and con-
duct of the defendant, unless otherwise prohibited by law."
U.S.S.G. § 1B1.4; see also 18 U.S.C. § 3661 ("No limitation
shall be placed on the information concerning the back-
ground, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sen-
tence").

The district court did not abuse its discretion in considering
Officer Prodan’s report and testimony during the course of
sentencing. First, the Federal Rules of Evidence, on which
Daubert is based, do not apply at sentencing. See Hernandez-
Villanueva, 473 F.3d at 122. In addition, sentencing judges
have considerable latitude to consider evidence at sentencing,
as authorized by both governing statutes and the Sentencing
Guidelines. Finally, as we have already noted, the sentencing
judge did not give significant weight to the report or testi-
mony of Officer Prodan, relying principally on Seay’s record
and the 1999 report of Dr. Warren.
 UNITED STATES v. SEAY 15
IV

Finally, Seay contends that his sentence of 96 months’
imprisonment is unreasonable. He notes that the Sentencing
Guidelines called for a sentencing range of 46 to 57 months’
imprisonment, and the district court’s upward variance of five
levels resulted in a Guidelines range of 77 to 96 months’
imprisonment, a 68% increase above the original range. Seay
argues that the district court inadequately explained its rea-
soning for sentencing Seay outside the Guidelines range and
placed undue weight on 18 U.S.C. § 3553(a)(2)(C), which
requires that the district court impose a sentence that
"protect[s] the public from further crimes of the defendant."

We review the district court’s sentence for reasonableness
under an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586 (2007). Under Gall, we must first "ensure that
the district court committed no significant procedural error."
Id. at 597. Then we must "consider the substantive reason-
ableness of the sentence imposed under an abuse-of-discretion
standard[,] . . . tak[ing] into account the totality of the circum-
stances, including the extent of any variance from the Guide-
lines range." Id. When reviewing sentences under this
standard, we have recognized that the sentence imposed "may
not be the only reasonable sentence," but it must be "a reason-
able sentence." United States v. Evans, 526 F.3d 155, 166 (4th
Cir. 2008). Gall specifically directs that "any reasonable sen-
tence be upheld." Id.

In this case, there was no procedural error, and the district
court properly calculated the Guidelines range. The court
allowed both parties to present evidence during the sentencing
proceedings, considered the § 3553(a) factors, and extensively
explained its reasoning for the variance. The court explained
that it based its variance on § 3553(a)(1), the "nature and cir-
cumstances of the offense and the history and characteristics
of the defendant," and § 3553(a)(2)(C), "the need for the sen-
tence imposed . . . to protect the public from further crimes
16 UNITED STATES v. SEAY
of the defendant." The court stated that additional measures
should be taken to protect the public from Seay because he
was likely to reoffend. The court observed that Seay had
become increasingly dangerous over the years, progressing
from possessing a knife to possessing a gun in connection
with his stalking practices. Further, Seay’s prior detention for
possessing a firearm did not deter him from resuming crimi-
nal conduct upon his release.

We cannot conclude that on this record, the district court’s
96-month sentence was unreasonable in light of the factors on
which it relied.

The judgment of the district court is accordingly

AFFIRMED.