UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CORNELIUS KEITH SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. Louise W. Flanagan, 

District Judge. (7:10-cr-00076-FL-1)

Submitted: October 31, 2012 Decided: December 11, 2012

Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North 

Carolina, for Appellant. Thomas G. Walker, United States

Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Cornelius Keith Smith pled guilty to possession with 

intent to distribute cocaine in violation of 21 U.S.C. 

§ 841(a)(1) (2006) (Count One) and using and carrying a firearm 

during and in relation to, and possession in furtherance of, a 

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) 

(2006) (Count Three). He was sentenced as a career offender, 

U.S. Sentencing Guidelines Manual § 4B1.1 (2011), to a term of 

267 months on Count One and a consecutive sixty months on Count 

Three, a total sentence of 327 months. His sentence was vacated 

on appeal in light of United States v. Simmons, 649 F.3d 237 

(4th Cir. 2011), and Smith was resentenced in December 2011. He 

no longer qualified for sentencing as a career offender; 

however, the district court departed upward pursuant to USSG 

§ 4A1.3, p.s., and imposed a sentence of 175 months on Count One 

and a consecutive sixty months on Count Three, for a total 

sentence of 235 months. Smith appeals, arguing that the upward 

departure resulted in an unreasonable sentence. We affirm.

We review a sentence for reasonableness under an abuse 

of discretion standard, Gall v. United States, 552 U.S. 38, 51 

(2007), which requires consideration of both the procedural and 

substantive reasonableness of a sentence. Id.; see United 

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A 

“deferential abuse-of-discretion standard applies to any 
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sentence, whether inside, just outside, or significantly outside 

the Guidelines range.” United States v. Rivera-Santana, 668 

F.3d 95, 100-01 (4th Cir.) (internal citation and quotation 

marks omitted), cert. denied, ___ S. Ct. ___, 2012 WL 2805025 

(U.S. Oct. 1, 2012); United States v. Diosdado-Star, 630 F.3d 

359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011). 

The district court “has flexibility in fashioning a 

sentence outside of the Guidelines range,” and need only “set 

forth enough to satisfy the appellate court that [it] has 

considered the parties’ arguments and has a reasoned basis” for 

its decision. Diosdado-Star, 630 F.3d at 364 (citing Rita v. 

United States, 551 U.S. 338, 356 (2007)). 

A district court may depart upward from the 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.” USSG § 4A1.3(a)(1); see United States v. Whorley, 550 

F.3d 326, 341 (4th Cir. 2008) (noting that an under-represented 

criminal history category is an encouraged basis for departure). 

To determine whether a departure sentence is appropriate in such 

circumstances, the Guidelines state that a court may consider 

prior sentences not used in the criminal history calculation, 

prior sentences of “substantially more than one year” for 
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independent crimes committed at different times, prior similar 

misconduct resolved by civil or administrative adjudication, 

charges pending at the time of the offense, or prior, similar 

conduct that did not result in a conviction. USSG 

§ 4A1.3(a)(2). 

Smith contends that the court erred in that it failed 

to provide a specific reason for each offense level that it 

rejected, failed to check any of the boxes in Part V of the 

sealed statement of reasons to explain its reasons for the 

departure, and failed to consider the minor nature of many of 

his prior offenses. His arguments are without merit. We do not 

“require a sentencing judge to move only one” offense level at a 

time, rejecting “each and every intervening level.” United 

States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (quotations 

omitted). However, the court is required to explain adequately 

its decision to depart and to relate its reason for the extent 

of the departure to the structure of the Guidelines. United

States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 

2007). The court did so at the sentencing hearing, its failure 

to check the box for a § 4A1.3 departure on the statement of 

reasons notwithstanding. The court noted Smith’s record of “a 

variety of petty crimes and misdemeanors,” but explained that 

Smith’s record of serious offenses and the likelihood of 
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recidivism justified a departure. We conclude that Smith has 

not shown significant procedural error by the district court. 

We therefore affirm the district court’s judgment. 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