UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4390

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JAMES ARTHUR ACKLIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. James C. Dever III, 

Chief District Judge. (4:12-cr-00025-D-1)

Submitted: February 21, 2014 Decided: February 27, 2014

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

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

Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

James A. Acklin appeals from the forty-six-month 

sentence imposed after he pleaded guilty to knowingly failing to 

register as required by the Sex Offender Registration and 

Notification Act (SORNA), in violation of 18 U.S.C. § 2250 

(2012). Acklin argues that his sentence is procedurally and 

substantively unreasonable. Specifically, Acklin contends that 

the district court erred in departing upward under U.S. 

Sentencing Guidelines Manual (USSG) § 4A1.3 (2012) without 

acknowledging that departures above criminal history VI are 

disfavored and in imposing a sentence that relied too heavily on 

the number of his criminal convictions instead of their

severity. Acklin also argues that the court erred in 

calculating his term of supervised release. We affirm the term 

of imprisonment portion of the sentence, vacate the portion of 

the judgment imposing supervised release, and remand for further 

consideration of the supervised release term.

We review a sentence for reasonableness, applying an 

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

38, 46 (2007). The same standard applies whether the sentence 

is “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, 133 S. Ct. 274 (2012). In reviewing any 
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sentence outside the Guidelines range, the appellate court must 

give due deference to the sentencing court’s decision because it 

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. United 

States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011). 

“[A] major departure should be supported by a more significant 

justification than a minor one.” Gall, 552 U.S. at 50.

The court first reviews for significant procedural 

error, and if the sentence is free from such error, it then

considers substantive reasonableness. Id. at 51. Procedural 

error includes improperly calculating the Guidelines range, 

treating the Guidelines range as mandatory, failing to consider 

the 18 U.S.C. § 3553(a) (2012) factors, and failing to 

adequately explain the selected sentence. Id. To adequately 

explain the sentence, the district court must make an 

“individualized assessment” by applying the relevant § 3553(a) 

factors to the case’s specific circumstances. United States v. 

Carter, 564 F.3d 325, 328 (4th Cir. 2009). The individualized 

assessment need not be elaborate or lengthy, but it must be 

adequate to allow meaningful appellate review. Id. at 330. 

Substantive reasonableness is determined by considering the 

totality of the circumstances, and if the sentence is within the 
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properly-calculated Guidelines range, this court applies a 

presumption of reasonableness. United States v. Strieper, 666 

F.3d 288, 295 (4th Cir. 2012). 

Pursuant to USSG § 4A1.3, 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.” USSG § 4A1.3(a)(1), p.s. 

Upward departures from the highest criminal history category are 

appropriate “[i]n the case of an egregious, serious criminal 

record in which even the guideline range for Criminal History 

Category VI is not adequate to reflect the seriousness of the 

defendant’s criminal history.” USSG § 4A1.3, p.s., cmt. n.2(b).

Here, the district court explained at length its 

reasons for the departure. It emphasized Acklin’s extensive 

criminal history, encompassing sixty-two convictions, several of 

which were serious offenses, including sexual assault, burglary 

and conspiracy to obtain property by false pretenses. The court 

observed that Acklin’s criminal history was “about as robust as 

one can find in terms of just the volume and the length,” thus 

concluding, contrary to Acklin’s argument, that Acklin’s 

criminal history was extraordinary. The court imposed a 

sentence nine months above the Guidelines range after following 
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our guidance on formulating the departure. We conclude that the 

sentence was procedurally reasonable.

Turning to the substantive reasonableness of the 

sentence, Acklin argues that the extent of the district court’s 

departure substantially overstated the seriousness of his 

criminal record. He argues that the court neglected to consider 

the degree to which his admittedly extensive criminal record has 

diminished in the last two decades. Further, Acklin contends 

that although he had fifty-five unscored convictions, the 

majority were for misdemeanor and traffic offenses, and 

therefore did not merit an upward departure of approximately 

thirty percent. In sum, Acklin contends that the district court 

placed too much weight on the number of convictions instead of 

their severity. See United States v. Cash, 983 F.2d 558 (4th 

Cir. 1992) (“[T]he sentencing court should consider not only the 

number of prior offenses committed by a defendant but also their 

seriousness.”). Our review of the sentencing transcript 

convinces us, however, that the district court considered not 

just the number of Acklin’s lifetime convictions but their 

individual severity and cumulative effect.

The court departed upward from 30 to 37 months to a 

range of 46 to 57 months and imposed a sentence of 46 months. 

In imposing the sentence, the court “considered all the 

arguments” of counsel, Acklin’s statement, and the 18 U.S.C. 
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§ 3553(a) factors. The court also noted that it considered 

Acklin’s explanation at the guilty plea hearing as to the 

circumstances surrounding his failure to register and took into 

account Acklin’s prior compliance with registration in 

Connecticut. The court balanced Acklin’s circumstances and the 

age of his many convictions with its concern whether Acklin’s 

criminal behaviors would come to an end. The court concluded 

that there was a need to deter and incapacitate Acklin, and to 

“provide just punishment, to take into account the seriousness 

of [Acklin’s] history and characteristics, the good and the 

bad.” Under the circumstances, we conclude that the district 

court’s decision to depart under § 4A1.3 and its extent of 

departure was factually supported and that the resulting 

sentence was substantively reasonable.

Finally, Acklin argues that the district court erred 

in calculating the Guidelines range for his supervised release 

term and in imposing a ten-year term. The Government responds 

that we should remand on the supervised release issue only. 

“[W]hoever is required to register under [SORNA and] . . . 

knowingly fails to register or update a registration as required 

by [SORNA,] shall be imprisoned for up to 10 years, fined, or be 

sentenced to both a fine and imprisonment.” 18 U.S.C. 

§ 2250(a)(3). For offenders under 18 U.S.C. § 2250, the term of 

supervised release “is any term of years not less than 5, or 
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life.” 18 U.S.C. § 3583(k) (2012). Under USSG § 5D1.2(b)(2), 

the minimum supervised release term is five years, but if the 

sentence is a sex offense, “the guideline range for a term of 

supervised release is five years to life.” 

The Defendant argues, and the Government agrees, that 

the failure to register offense is not a sex offense; therefore,

the supervised release Guidelines range does not include a 

maximum of life, and does not create a range of five years to 

life as is the case with sex offenses. The PSR indicated a 

supervised release Guidelines range of five years to life based 

on USSG § 5D1.2(b)(2) and 18 U.S.C. § 3583(k). The district 

court imposed a ten-year term without discussion. Subsequent to 

the sentencing hearing, the Department of Justice (DOJ) issued 

guidance and established the Government’s position on supervised 

release terms for defendants convicted of SORNA offenses. 

According to the Government, the memo states (1) that a 

conviction for failure to register as a sex offender under 

§ 2250(a) does not qualify as a “sex offense” under USSG 

§ 5D1.2(b); and (2) the advisory supervised release range for a 

§ 2250(a) conviction is a single point: the statutory minimum of 

five years.

Because the district court entered judgment before the 

DOJ memo issued, the case may benefit from the district court 

reconsidering the supervised release portion of the sentence. 
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Accordingly, we affirm the term of imprisonment, vacate the 

portion of the sentence imposing supervised release, and remand 

for reconsideration in light of the DOJ’s recently issued 

position regarding the advisory supervised release range. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED