UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4522

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEPHEN HARDISON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. W. Earl Britt, Senior 

District Judge. (5:08-cr-00278-BR-2)

Submitted: February 24, 2010 Decided: March 19, 2010

Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Stephen Hardison appeals the 197-month sentence 

imposed after he pled guilty, pursuant to a plea agreement, to 

one count of conspiracy to distribute and possess with intent to 

distribute fifty grams or more of crack cocaine, 500 grams or

more of cocaine, and a quantity of marijuana, in violation of 21 

U.S.C. §§ 846, 841(a)(1) (2006). We affirm.

In the presentence report (PSR), the probation officer 

recommended a total offense level of twenty-seven and a criminal 

history category of VI, which resulted in a sentencing range of 

130 to 162 months of imprisonment. The PSR also noted that 

Hardison’s extensive criminal history might warrant an upward 

departure pursuant to U.S. Sentencing Guidelines Manual (USSG) 

§ 4A1.3(a) (2008). Hardison did not object to the PSR.

Before sentencing, the Government filed a motion for a 

downward departure pursuant to USSG § 5K1.1 based on Hardison’s 

substantial assistance. At sentencing, the district court 

adopted the factual findings and Guidelines calculations in the 

PSR, without objection. The Government orally moved for an 

upward departure on the ground that Hardison’s criminal history 

category under-represented the seriousness of his past criminal 

conduct and the likelihood that he would continue to commit 

crimes. The district court granted the Government’s motion for 

an upward departure and departed upward to offense level thirty-
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four, which increased the sentencing range to 262 to 327 months. 

The court then granted the Government’s substantial assistance 

motion and departed downward to a sentence of 197 months of 

imprisonment.

On appeal, Hardison first argues that the district 

court imposed a procedurally unreasonable sentence by failing to 

consider the factors in 18 U.S.C. § 3553(a) (2006), with the 

exception of Hardison’s criminal history, which was considered 

only as it related to the Government’s motion for upward 

departure. This court reviews a sentence for reasonableness 

under an abuse of discretion standard. Gall v. United States, 

552 U.S. 38, 51 (2007). This review requires appellate 

consideration of both the procedural and substantive 

reasonableness of a sentence. Id. After determining whether 

the district court properly calculated the defendant’s advisory 

Guidelines range, this court must consider whether the district 

court considered the § 3553(a) factors, analyzed any arguments 

presented by the parties, and sufficiently explained the 

selected sentence. Id. at 49-51. “Regardless of whether the 

district court imposes an above, below, or within-Guidelines 

sentence, it must place on the record an ‘individualized 

assessment’ based on the particular facts of the case before 

it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009).
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Our review of the record leads us to conclude that the 

district court did not procedurally err in its determination or 

explanation of Hardison’s sentence. Hardison argued that “the 

history and characteristics of the defendant,” 18 U.S.C. 

§ 3553(a)(1), did not warrant an upward departure, but supported 

a sentence at the statutory minimum. The district court 

discussed in detail Hardison’s criminal history, the indications 

that he would continue to commit crime, and the need to protect 

the public from Hardison’s crimes. Although the court did not 

discuss Hardison’s drug addiction or employment opportunities, 

such omission was not error. The district court adequately 

addressed the relevant § 3553(a) factors and explained its

sentencing determination in terms specific to Hardison.

Hardison also argues that his sentence is 

substantively unreasonable because the district court based its 

decision to upwardly depart on the number of his prior 

convictions rather than on the seriousness of his criminal 

record. This court reviews the substantive reasonableness of 

the sentence, “taking into account the ‘totality of the 

circumstances, including the extent of any variance from the 

Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473 

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). “If the 

district court decides to impose a sentence outside the 

Guidelines range, it must ensure that its justification supports 
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the ‘degree of the variance’; thus, ‘a major departure should be 

supported by a more significant justification than a minor 

one.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir. 

2008) (quoting Gall, 552 U.S. at 50). This court “may consider 

the extent of the deviation [from the recommended Guidelines 

range], but must give due deference to the district court’s 

decision that the § 3553(a) factors, as a whole, justify the 

extent of the variance.” Gall, 552 U.S. at 51. That this court 

would have reached a different result in the first instance is 

an insufficient reason to reverse the district court’s sentence. 

Id.

A district court may depart upward from the Guidelines 

range under USSG § 4A1.3(a) when “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). This 

court has stated that “[s]ection 4A1.3 was drafted in classic 

catch-all terms for the unusual but serious situation where the 

criminal history category does not adequately reflect past 

criminal conduct or predict future criminal behavior.” United 

States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). “In 

determining whether an upward departure from Criminal History 

Category VI is warranted, the court should consider that the 

nature of the prior offenses rather than simply their number is 
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often more indicative of the seriousness of the defendant’s 

criminal record.” USSG § 4A1.3, comment. (n.2(B)). In deciding 

the extent of a departure in the case of a defendant who is 

already in criminal history category VI, “the court should 

structure the departure by moving incrementally down the 

sentencing table to the next higher offense level in Criminal 

History Category VI until it finds a guideline range appropriate 

to the case.” USSG § 4A1.3(a)(4)(B).

Contrary to Hardison’s argument, the district court’s 

explanation reveals that the court considered the nature of his 

prior crimes in addition to their number. The PSR reveals that 

Hardison has a total of twenty-eight misdemeanor and seventy 

felony convictions. Seventeen of the misdemeanor and fifty-five 

of the felony convictions received no criminal history points in 

the Guidelines calculation. Moreover, Hardison’s criminal 

history includes multiple instances in which he received a 

sentence of probation that was later revoked upon his commission 

of additional crimes. Finally, although the majority of 

Hardison’s crimes were property-related, many of his convictions 

involved breaking and entering, which presents a risk of 

confrontation by the owner of the property. The district 

court’s decision to depart was supported by the evidence, and 

the extent of the departure was reasonable.
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Accordingly, we affirm Hardison’s sentence. 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