**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 0**  **8 -**  **48 3**  **3**

UNITED STATES OF AMERICA , Plaintiff

– Appell ee ,
v. DAVID EDWARD BOLAND , Defendant

– Appell ant .

Appeal from the United States District Court for the Western District of N o r th Carolina , at Charlotte
. Robert J. Conrad, Jr. , Chief District Judge. ( 3 :0 7

- c r - 0 0 261

- RJC

- 1 )

Submitted : February 2 4 , 2010 Decided: March 1 9 , 2010

Before WILKINSON, MOTZ, and D AVIS , Circuit Judges.

Affirm e d by un published per cu riam opinion
. Harold M. Vaught, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray , Assistant United States Attorney , Asheville, North Carolina , for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM:
Da vid Edward Boland pled guilty to receiving visual depictions of a minor engaging in sexually explicit conduct, 18
U.S.C. § 2252(a), (b)(1) (2006) (Count One) , and possession of one or more books, magazines, periodicals, films, video tapes or other matter c ontaining any visual depiction of a minor engaging in sexual ly explicit conduct , 18 U.S.C. § 2252(a)(4)(B), (b)(2) (2006)
. The district court granted the Government’s motion for upward departures and sentenced Boland to 23 4 months’ imprisonment and a life

- term of supervised release
. Counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating that in his view, there are no meritorious issues for appeal , but question ing whether Boland’s sentence was legally imposed. Boland has filed a pro se supplemental brief
. T he Government has not filed a brief. We affirm.
We review for reasonableness all sentences , “whether inside, just outside, or significantly outside the Guidelines range” under a “deferential abuse

- of

- discretion stand ard.” Gall v. United States , 552 U.S. 38, 41 (2007); United States v.
Evans , 526 F.3d 155, 161 (4th Cir.), cert. denied , 129 S. Ct. 476 (2008). This review requires appellate consideration of both the procedural and substantive reasonableness of a
sente nce. Gall , 552 U.S. at 46. After determining whether the district court properly calculated the defendant’s advisory3 g uidelines range, we must then decide whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any argument s presented by the parties, and sufficiently explained the selected sentence. Id. at 49

- 50. In imposing its sentence, the district court 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). Finally, we review 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) (internal quotation marks and citation omitted). To determine whether the district court abused its discretion in imposing Boland’s departure sentence, we consider “whether the sentencing court acted reasonab ly 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). We will find a sentence to be unreasonab le if the sentencing “court provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside the properly calculated advisory sentencing range.” Id. In this case, the district court ’s sentence was procedurally r easonable. The district court properly adopted4 the guidelines sentence calculation in the presentence report , which the parties did not dispute. However, as the district court stated on the record, the guidelines calculation did not take into account man y aspects of Boland’s conduct. The district court listened to the parties’ arguments at length and ultimately adequately stated its reasons for granting the Government’s motion for upward departures and in imposing a 234

- month sentence. Similarly, Bolan d’s sentence was substantively reasonable. The district court explained that Boland’s criminal history category of II substantially under

- represented the seriousness of his past criminal conduct and the likelihood he will commit other crimes. Boland admi tted that shortly after being paroled on a ten

- year federal child pornography sentence, he returned to the same criminal conduct. Furthermore, Boland stated that he did not believe his conduct was wrong. The court therefore departed one criminal history category. See U.S. Sentencing Guidelines Manual § 4A1.3 (a) (2007) ( 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 . . . .” ).5 Additionally, the district court found that the length and quantity of the videos warranted an upward departure under
USSG § 2G2. 2. The court found that thirty percent of Boland’s collection of videos was videos longer than five minutes in length. See USSG § 2G2.2 & cmt. n.4(B)(ii) (authorizing upward departure if length of recording is substantially more than five minutes). The court considered a one

- level departure; however, given the gravity of the criminal conduct, the court departed two levels, noting the staggering amount of lengthy videos, the sadistic and masochistic nature of the series, and the repeated victimization dep icted. Furthermore, the court found the number of images possessed by Boland greatly exceeded the number required for a guideline enhancement under USSG § 2G2.2(b)(7)(D) (imposing maximum enhancement of five levels for six hundred images) . The court foun d the sheer quantity of videos as an encouraged basis for departure
. See USSG § 2G2.2 & cmt. n.4(B)(i) (“If the number of images under represents the number of minors depicted, an upward departure may be warranted.”). Although the district court conside red a one

- level increase, it did not believe it was adequate to capture the gravity of the criminal conduct. The court therefore departed two levels on this basis , finding Boland’s possession of 854,992 images w as not adequately taken into consideration b y the guidelines. S ee USSG § 5K2.0(a)(3) (departures based on cir c umstances present to6 a degree not adequately taken into consideration in determining the guidelines range). In considering the § 3553(a) factors, the district court found that the childr en, including infants, in the videos were subject to extensive and extended abuse beyond what was typical in other cases handled by the court and contemplated in the guidelines. The court also cited the nature and quantity of the images. After finding th at Boland posed a serious risk of further crimes, the court stated that the primary purpose of the sentence was to protect the public from further crimes by Boland. T he court explained that the terms and conditions of supervised release were insufficient to protect the public and that “its protective function is best served by enhancing the
sentence.” After establish ing a newly calculated advisory guidelines range of 188 to 235 months’ imprisonment, the district court deemed a sentence of 234 months appro priate in this case. Given the district court’s meaningful articulation of its consideration of the § 3553(a) factors, and its careful consideration of reasons warranting departure from the
g uidelines range, we find Boland’s departure senten ce reasonable. In accordance with Anders , we have reviewed the record in this case and have found no meritorious issues for appeal. We further find Boland’s claims in his pro se7 supplemental brief without merit. We therefore affirm the district court’s judgment. This court requires that counsel inform Boland, in writing, of the right to petition the Supreme Court of the United States for further review. If Boland requests that a petition be filed, but counsel believes that such a petition would be fri volous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Boland. We dispense with oral argument because the facts and legal contentions are adequately presented i n the materials before the court and argument would not aid the decisional process.

AFFIRMED