UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4514

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KENDRICK BAHAM,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (2:06-cr-00001-F)

Submitted: November 14, 2007 Decided: December 11, 2007

Before WILLIAMS, Chief Judge, KING, Circuit Judge, and WILKINS,

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Banumathi Rangarajan, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kendrick Baham appeals the district court’s decision to

impose a upward departure from the advisory sentencing guidelines

based on the finding that his past criminal conduct was not

reflected in his criminal history category. Finding no error, we

affirm. 

Baham was convicted of escaping from an institutional

facility in which he was lawfully confined for a felony conviction.

At his initial sentencing, the district court imposed a sentence

greater than suggested by the advisory sentencing guidelines. This

court found that the district court erred by not first considering

an upward departure under U.S. Sentencing Guidelines Manual § 4A1.3

(2005). We further found the record failed to show that the

district court considered a sentence within a lower range of

imprisonment or why such a sentence was inappropriate. Because the

court did not consider the appropriateness of an upward departure

under the guidelines, the sentence was vacated and remanded for

resentencing. United States v. Baham, No. 06-4443, 2007 WL 313298

(4th Cir. Jan. 30, 2007) (unpublished).

This court will affirm the sentence imposed by the

district court as long as it is within the statutorily prescribed

range and reasonable. “Reasonableness review involves both

procedural and substantive components. A sentence may be

procedurally unreasonable, for example, if the district court
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provides an inadequate statement of reasons or fails to make a

necessary 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.”

United States v. Moreland, 437 F.3d 424, 434 (4th Cir.) (internal

citations omitted), cert. denied, 126 S. Ct. 2054 (2006). 

At resentencing, the district court followed proper

sentencing procedures by: (1) calculating the guideline range;

(2) determining whether a sentence within that range serves the

factors under § 3553(a); (3) implementing mandatory statutory

limitations; and (4) explaining its reasons for selecting the

sentence, especially a sentence outside the advisory range. United

States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126

S. Ct. 2309 (2006). After determining that a sentence within the

guidelines was not appropriate because of Baham’s prior criminal

conduct, the court considered whether a departure is appropriate

based on the guidelines or relevant case law. Moreland, 437 F.3d

at 432. A district court may depart upward from the guidelines

range under USSG § 4A1.3 when “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). The guideline

further directs that “[i]n a case in which the court determines

that the extent and nature of the defendant’s criminal history,
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taken together, are sufficient to warrant an upward departure from

Criminal History Category VI, the court should 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.” USSG §

4A1.3(a)(4)(B). Commentary to the guideline states that, “[i]n

determining whether an upward departure from Criminal History

Category VI is warranted, the court should consider that the nature

of the prior offenses rather than simply their number is often more

indicative of the seriousness of the defendant’s criminal record.”

USSG § 4A1.3, comment. (n.2(B)). The guidelines specifically

provide that the court may consider “[p]rior similar adult criminal

conduct not resulting a criminal conviction.” USSG §

4A1.3(a)(2)(E). The court may also rely on facts underlying prior

arrests. United States v. Dixon, 318 F.3d 585, 591 (4th Cir.

2003). As part of this process, “[t]he district court must

articulate the reasons for the sentence imposed, particularly

explaining any departure or variance from the guideline range.”

Moreland, 437 F.3d at 432. This court must ask “whether the

sentence was selected pursuant to a reasoned process in accordance

with the law, in which the court did not give excessive weight to

any relevant factor, and which effected a fair and just result in

light of the relevant facts and law.” Green, 436 F.3d at 457. 
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We find the district court’s upward departure was

reasonable. Given the circumstances, the court adequately

explained its reasons for not ordering a sentence within a lower

range of imprisonment.

Accordingly, we affirm Baham’s sentence. 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