UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4826

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALVIN KEON ANDERSON, a/k/a Muscle,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

Judge. (3:09-cr-00082-HEH-1)

Submitted: August 26, 2010 Decided: September 15, 2010

Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia 

Beach, Virginia, for Appellant. Neil H. MacBride, United States 

Attorney, John S. Davis, Assistant United States Attorney, 

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Alvin Keon Anderson pleaded guilty to possession of a 

firearm after having previously been convicted of a crime 

punishable by a term of imprisonment exceeding one year, in 

violation of 18 U.S.C. § 922(g)(1) (2006). The district court 

sentenced Anderson to ninety-six months of imprisonment and he 

now appeals. Finding no error, we affirm. 

On appeal, Anderson challenges the district court’s 

imposition of a departure sentence pursuant to U.S. Sentencing 

Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2009). We review a 

sentence for reasonableness, applying an abuse of discretion 

standard. Gall v. United States, 552 U.S. 38, 51 (2007); see 

also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), 

cert. denied, 130 S. Ct. 290 (2009). In so doing, we first 

examine the sentence for “significant procedural error,” 

including “failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing 

to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence . . . .” 

Gall, 552 U.S. at 51. Finally, this court considers the 

substantive reasonableness of the sentence, “taking into account 

the totality of the circumstances, including the extent of any 

variation from the Guidelines range.” Id. 
3

Anderson argues that the district court erred in 

finding that he had committed a crime, for which he was 

previously acquitted by a jury, by a preponderance of the 

evidence. Under U.S.S.G. § 4A1.3(a)(1), a district court may 

depart upward 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 . . . .” In deciding whether to depart under this 

provision, the court may consider prior similar adult conduct 

not resulting in a criminal conviction. U.S.S.G. 

§ 4A1.3(a)(2)(E). Moreover, “[p]reponderance of the evidence is 

the appropriate standard of proof for sentencing purposes.” 

United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009), 

cert. denied, 130 S. Ct. 1923 (2010). We have thoroughly 

reviewed the record and conclude that the district court's 

decision to upwardly depart was based on the proper criteria set 

forth in § 4A1.3, the district court properly found the conduct 

that formed the basis of the departure by a preponderance of the 

evidence, and the extent of the departure is reasonable and 

supported.

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
4

before the court and argument would not aid the decisional 

process.

AFFIRMED