UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4833

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DAVID EDWARD BOLAND,

Defendant – Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr., 

Chief District Judge. (3:07-cr-00261-RJC-1)

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

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

David 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 containing any visual depiction of a minor engaging 

in sexually 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 234 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 questioning whether Boland’s sentence was 

legally imposed. Boland has filed a pro se supplemental brief.

The 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 standard.” 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 

sentence. Gall, 552 U.S. at 46. After determining whether the 

district court properly calculated the defendant’s advisory 
3

guidelines range, we must then decide whether the district court 

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any 

arguments 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 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). We will find a sentence to be unreasonable 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 reasonable. The district court properly adopted 
4

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 many 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, Boland’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 admitted 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 depicted. 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 found 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 considered 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 was 

not adequately taken into consideration by the guidelines. See

USSG § 5K2.0(a)(3) (departures based on circumstances present to 
6

a degree not adequately taken into consideration in determining 

the guidelines range). 

In considering the § 3553(a) factors, the district 

court found that the children, 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 that 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. The 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 establishing a newly calculated advisory 

guidelines range of 188 to 235 months’ imprisonment, the 

district court deemed a sentence of 234 months appropriate 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 

guidelines range, we find Boland’s departure sentence 

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 se 
7

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 frivolous, 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 in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED