UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4223

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ZACHARY B. TINSLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Henry E. Hudson, District

Judge. (3:05-cr-000999-HEH)

Argued: December 1, 2006 Decided: May 1, 2007

Before MOTZ and TRAXLER, Circuit Judges, and David A. FABER, Chief

United States District Judge for the Southern District of West

Virginia, sitting by designation.

Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

ARGUED: Carolyn Virginia Grady, Assistant Federal Public Defender,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for

Appellant. Matthew Childs Ackley, Special Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,

for Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal

Public Defender, Richmond, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Richmond, Virginia, for

Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Zachary Tinsley was convicted of unlawful possession of a

firearm by a felon. See 18 U.S.C.A. § 922(g)(1) (West 2000).

Under the Sentencing Guidelines, the advisory sentencing range was

33-41 months. The district court granted the government’s motion

for an upward departure and sentenced Tinsley to 120 months.

Tinsley appeals, challenging his sentence and conviction. For the

reasons set forth below, we affirm Tinsley’s conviction, but we

vacate his sentence and remand for re-sentencing.

I.

Police officers in Richmond, Virginia, stopped a car

registered to Tinsley, for whom there was an outstanding arrest

warrant. Tinsley was driving the car, and Darryl Payne was in the

passenger seat. Once Tinsley was out of the car and handcuffed, an

officer told Tinsley that he was going to search the car. Tinsley

became agitated and said, “You can’t search the car. You have no

right to search the car.” J.A. 45. Tinsley then told Payne, who

was still near the car, to lock the car and not to let the police

search the car. The search proceeded despite Tinsley’s

objections, and a loaded .25 caliber pistol was found in the glove

box. While Tinsley was in the police station awaiting processing,

Tinsley began talking to himself in a way that the attending police

officer believed he was supposed to overhear. Tinsley mumbled, “He
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was sitting closest to the gun. Who could reach the gun the

easiest? . . . I can’t believe my nephew would set me up like

that.” J.A. 55.

Payne (the passenger) reluctantly testified for the government

at trial. He said that while he is not related to Tinsley, he

considers Tinsley to be his uncle. Although Payne did not testify

that the gun belonged to Tinsley, Payne did say that he did not own

the car, that the gun was not his, and that he had not put it in

the glove box. On cross-examination, counsel for the defense

established that Payne was a heroin addict and that Payne had, just

before he testified against Tinsley, pleaded guilty to a felony

concealed weapons charge. The jury found Tinsley guilty of being

a felon in possession of a firearm.

 The presentence report (“PSR”) prepared for Tinsley’s

sentencing detailed Tinsley’s criminal record, which included

multiple drug and weapons charges. Four convictions (including two

firearms charges) that Tinsley had committed were not counted

because the convictions were too old, and the PSR mentioned ten

arrests that did not result in convictions. Because Tinsley

committed the instant offense while he was on probation and within

two years of release from a prior term of imprisonment, he received

three additional criminal history points. His countable criminal

record, along with the additional points, gave Tinsley a category

V criminal history, with 12 criminal history points. With a base
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offense level of 14, Tinsley’s advisory sentencing range was 33-41

months.

The government moved for an upward departure, asking the

district court to increase the offense level and criminal history

category. The district court granted the motion, concluding that

even though Tinsley did not qualify as a career offender under the

Guidelines, his criminal history score substantially underrepresented the extent of Tinsley’s criminal activity and the

likelihood that he would re-offend. Concluding that Tinsley was a

de facto career criminal, the district court increased Tinsley’s

criminal history to category VI. The court stated that “if there

is ever someone who warrants the maximum sentence, it is Mr.

Tinsley,” J.A. 186-87, and the court determined that an upward

departure of 10 offense levels was warranted. Tinsley’s new

offense level of 24 and category VI criminal history yielded a

sentencing range of 100-125 months. The court then imposed a

sentence of 120 months, the statutory maximum.

II.

On appeal, Tinsley first challenges the sufficiency of the

government’s evidence. “A defendant challenging the sufficiency of

the evidence to support his conviction bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal quotation marks omitted). “In reviewing the sufficiency
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of the evidence . . ., our role is limited to considering whether

there is substantial evidence, taking the view most favorable to

the Government, to support it.” Id. (internal quotation marks

omitted). “[S]ubstantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).

A conviction under § 922(g)(1) requires the government to

establish that “(1) the defendant previously had been convicted of

a crime punishable by a term of imprisonment exceeding one year;

(2) the defendant knowingly possessed, transported, shipped, or

received, the firearm; and (3) the possession was in or affecting

commerce.” United States v. Langley, 62 F.3d 602, 606 (4th Cir.

1995) (en banc). Possession may be actual, constructive, or joint.

See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.

2001).

On appeal, Tinsley contends that the government failed to

prove possession. He argues that there was no evidence that he was

in actual possession of the firearm and that the circumstantial

evidence of constructive possession was, at most, equally

suggestive of possession by Tinsley or Payne, given that the gun

was in the glove box and was thus most accessible to Payne. Citing

United States v. Sanchez, 961 F.2d 1169 (5th Cir. 1992), Tinsley
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contends that we must reverse his conviction. See id. at 1173 (“If

the evidence viewed in the light most favorable to the prosecution

gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence of the crime charged, this court

must reverse the convictions.” (internal quotation marks omitted)).

We disagree.

“A person has constructive possession over contraband when he

has ownership, dominion, or control over the contraband itself or

over the premises or vehicle in which it was concealed.” United

States v. Armstrong, 187 F.3d 392, 396 (4th Cir. 1999). In this

case, the car in which the gun was found was registered to Tinsley,

and Tinsley was driving it when the gun was found. The jury was

thus entitled to conclude that Tinsley had dominion and control

over the car. In addition, Tinsley became highly agitated when the

police told him that they were going to search the car, which

suggests that Tinsley knew there was something in the car that he

did not want the police to find. And most importantly, Payne

testified at trial that the gun did not belong to him and that he

did not put the gun in the car. In our view, this evidence was

more than sufficient to permit the jury to conclude that the gun

belonged to Tinsley rather than Payne. Accordingly, we reject

Tinsley’s challenge to his conviction.
1

United States v. Booker, 543 U.S. 220 (2005).

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III.

We turn now to Tinsley’s challenges to the ten-year sentence

imposed by the district court. Sentencing in the post-Booker1

world is a multi-step procedure. The district court first must

correctly calculate the sentencing range prescribed by the

Guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005). The court must then consider whether this advisory

sentencing range “serves the factors set forth in § 3553(a)”; if

the sentence does not serve the § 3553(a) factors, the court must

“select a sentence that does serve those factors.” United States

v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct.

2309 (2006). When selecting a sentence that serves the purposes of

§ 3553(a), the district court must consider

whether a departure is appropriate based on the

Guidelines Manual or relevant case law. . . . If an

appropriate basis for departure exists, the district

court may depart. If the resulting departure range still

does not serve the factors set forth in § 3553(a), the

court may then elect to impose a non-guideline sentence.

United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.

denied, 126 S. Ct. 2054 (2006).

We review a post-Booker sentence for reasonableness, which

includes procedural and substantive components. “A sentence may be

procedurally unreasonable . . . if the district court provides an

inadequate statement of reasons or fails to make a necessary
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factual finding. A sentence may be substantively unreasonable if

the court relies on an improper factor or rejects policies

articulated by Congress or the Sentencing Commission.” Id. at 434.

“When we review a sentence outside the advisory guideline range--

whether as a product of a departure or a variance--we consider both

whether the district court acted reasonably with respect to its

decision to impose such a sentence and with respect to the extent

of the divergence from the guideline range.” United States v.

Davenport, 445 F.3d 366, 370-71 (4th Cir. 2006).

The district court at sentencing concluded that Tinsley’s

criminal history category “substantially underrepresents the extent

of his criminal activity and the likelihood of reoffending.” J.A.

186. And although Tinsley was ineligible for sentencing as a

career criminal, the district court believed that Tinsley was a “de

facto” career criminal. The court raised Tinsley’s criminal

history to category VI and his offense level from 14 to 24, changes

that increased Tinsley’s advisory sentencing range from 33-41

months to 100-125 months. The court then sentenced Tinsley to 120

months imprisonment.

On appeal, Tinsley raises several challenges to his sentence.

Tinsley first contends that the district court erred in its

approach to the departure. Tinsley argues that after increasing

his criminal history category, the district court should have moved

sequentially through each higher offense level, considering the
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sentence called for at each level and moving on to the next higher

offense level only after explaining why that sentence was

inadequate.

If a district court concludes that an upward departure is

required for a defendant with a category VI criminal history, the

Sentencing Guidelines require the court to “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.” U.S.S.G. §

4A1.3(a)(4)(B). Thus, the sentencing court should “move to

successively higher categories only upon finding that the prior

category does not provide a sentence that adequately reflects the

seriousness of the defendant’s criminal conduct.” United States v.

Cash, 983 F.2d 558, 561 (4th Cir. 1992).

Tinsley contends that the requirements of § 4A1.3(a)(4)(B)

became applicable once the district court moved him into criminal

history category VI. Tinsley argues that resentencing is required

because the district court failed to move incrementally down the

sentencing table. See, e.g., Green, 436 F.3d at 457 (explaining

that if a “sentence is based on an error in construing or applying

the Guidelines, it will be found unreasonable and vacated”).

The district court in this case did not move incrementally

down the sentencing table when imposing sentence. The court stated

that it believed that Tinsley’s criminal history score
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“substantially underrepresents the extent of [Tinsley’s] criminal

activity and the likelihood of reoffending.” J.A. 186. The court

moved Tinsley into criminal history category VI and thereafter did

not explicitly consider any of the intervening offense levels.

Instead, the court simply announced its view that a “departure of

ten . . . levels is appropriate.” J.A. 205. Although the

Guidelines’ “mandate to depart incrementally does not . . . require

a sentencing judge to move only one level, or to explain its

rejection of each and every intervening level,” United States v.

Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (internal quotation marks

omitted), the district court’s approach falls well short of that

required by § 4A1.3(a)(4)(B) and Cash. See id. at 200 (concluding

that district court’s statement that it “‘considered lesser offense

levels and found them to be inadequate’” did not satisfy the

requirements of § 4A1.3 and remanding for resentencing).

It is not entirely certain, however, that § 4A1.3(a)(4)(B) is

directly applicable to this case, given that Tinsley’s criminal

history score originally placed him in category V rather than

category VI. Nonetheless, even assuming that § 4A1.3(a)(4)(B) is

not strictly applicable, the district court’s failure to move

incrementally down the sentencing table and to explain why the

intervening offense levels did not yield an sufficient sentence is

relevant to another of Tinsley’s challenges to his sentence--that

the district court’s explanation of the sentence is inadequate.
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After Booker, a sentencing court must explain the reasons

behind the sentence it imposes, “particularly explaining any

departure or variance from the guideline range. The explanation of

a variance sentence must be tied to the factors set forth in §

3553(a) and must be accompanied by findings of fact as necessary.”

Moreland, 437 F.3d at 432. “Generally, if the reasons justifying

the variance are tied to § 3553(a) and are plausible, the sentence

will be deemed reasonable.” Id. at 434. “However, when the

variance is a substantial one . . ., we must more carefully

scrutinize the reasoning offered by the district court in support

of the sentence. The farther the court diverges from the advisory

guideline range, the more compelling the reasons for the divergence

must be.” Id.

In this case, the sentence imposed by the district court is

nearly three times the high end of Tinsley’s advisory sentencing

range. The district court’s explanation of the sentence, however,

fails to set out compelling reasons justifying such a substantial

departure from the advisory sentencing range.

The district court’s explanation for its sentence focused

almost exclusively on Tinsley’s “terrible” criminal record. J.A.

190. Tinsley’s record included seven felony convictions, plus

multiple misdemeanors, and there were several convictions that had

not been included in the Guidelines calculation. Five of Tinsley’s

prior convictions were for firearms offenses, and the district
2Given our disposition of these issues, we need not address

Tinsley’s other challenges to his sentence. As to Tinsley’s claim

that the 120-month sentence imposed by the distict court is

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court noted that Tinsley had repeatedly violated the terms of his

probation, parole, and supervised release. Given Tinsley’s

extensive criminal past, the district court reasonably concluded

that an upward departure was warranted. That Tinsley has a bad

criminal record, however, does little to distinguish Tinsley from

other defendants with a category VI criminal history, and the mere

fact of Tinsley’s bad record, standing alone, does not serve as an

adequate explanation of how the district court selected the 120-

month sentence from the range of sentencing options available.

Because the district court failed to proceed incrementally down the

sentencing table, as required by § 4A1.3(a)(4)(B), or otherwise

explain why it settled on a sentence of 120 months, the court’s

explanation of the sentence does not provide us with a basis for

reviewing the reasonableness of the particular sentence imposed by

the court. Accordingly, we must vacate Tinsley’s sentence and

remand for resentencing with “a more rigorous sentencing analysis.”

Dalton, 477 F.3d at 200; see United States v. Hampton, 441 F.3d

284, 288-89 (4th Cir. 2006) (finding explanation of sentence

substantially below the advisory range to be inadequate where “the

court did not explain how this variance sentence better served the

competing interests of § 3553(a) than the guidelines sentence

would”).2
unreasonably long, we note only that we have rejected similar

sentences in cases involving defendants with extensive criminal

records. See United States v. Davenport, 445 F.3d 366, 372 (4th

Cir. 2006) (finding unreasonable a sentence of 120 months where

advisory sentencing range was 30-37 months and defendant had more

than twice the number of criminal history points needed to place

him in category VI); see also United States v. Tucker, 473 F.3d

556, 564-65 (4th Cir. 2007) (in case where advisory sentencing

range was 24-30 months, finding sentence of 144 months to be

excessive notwithstanding district court’s reasonable belief that

the defendant, who was before the court on her third conviction for

embezzling from an employer, was highly likely to re-offend). The

district court on remand should give due consideration to these

cases when imposing and explaining Tinsley’s sentence.

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IV.

Accordingly, for the foregoing reasons, we hereby affirm

Tinsley’s conviction. However, we vacate Tinsley’s sentence and

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART