UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4939

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEITHON DERNARD SOUTHERLAND,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (7:09-cr-00068-FL-1)

Submitted: July 18, 2011 Decided: August 9, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North 

Carolina, for Appellant. George E. B. Holding, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Keithon Dernard Southerland appeals his conviction and 

105-month sentence for one count of possession of a firearm and 

ammunition by a convicted felon in violation of 18 U.S.C. 

§ 922(g)(1) (2006). On appeal he asserts that the district 

court erred in denying his motion to suppress the firearm and 

ammunition, that the Government breached the plea agreement, and 

that the district court imposed an unreasonable sentence. For 

the following reasons, we affirm.

Southerland’s indictment and conviction stemmed from 

the robbery of a home in North Carolina. On October 25, 2008, 

police responded to a report of an unlawful entry into a 

residence. Resident Thomas Joseph Marino informed Wilmington, 

North Carolina, police that while he was out walking his dog, 

someone entered his home through an unlocked door and stole a 

Toshiba laptop computer and a Samsung cell phone. Using GPS 

features imbedded in the phone, police tracked its location to 

the vicinity of 401 Henry Street. 

Officer R.V. Dawson observed a silver Cadillac parked 

in the driveway of the home located at 401 Henry Street. Dawson 

peered into the vehicle, and observed in plain view, a phone and 

a laptop matching the description of the items stolen from 

Marino’s home. Dawson obtained Southerland’s consent to open 
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the laptop computer, and when the computer loaded, the name “Tom 

Marino” was listed as the primary user. Southerland was 

arrested for possession of stolen property. After Southerland

was placed in a patrol car, Dawson and other officers searched 

the Cadillac. In the course of the search, they found a jacket 

located in the front passenger seat. In the pocket of the 

jacket, Dawson found the magazine of a handgun. Shortly 

thereafter, a second officer located a handgun near the back 

seat of the vehicle.

Southerland moved to suppress the firearm and 

ammunition seized from his vehicle. After the district court 

denied the motion, Southerland entered a conditional guilty 

plea, reserving the right to appeal from the denial of his 

motion to suppress. Southerland memorialized his plea in a 

written agreement with the Government. Pertinent to this 

appeal, the Government agreed that it would “make known to the 

[district court] at sentencing the full extent of the 

Defendant’s cooperation, but the United States is not promising 

to move for a departure pursuant to [U.S. Sentencing Guidelines 

Manual] § 5K1.1, 18 U.S.C. § 3553(e) [(2006)], or Fed. R. Crim. 

P. 35.” 

The advisory Guidelines range calculated by the 

Probation Office in Southerland’s presentence investigation 
4

report (“PSR”) was 30 to 37 months, based on an offense level of 

15 and a criminal history category of IV. The Government moved 

for an upward departure, arguing that Southerland’s Guidelines 

criminal history category significantly underrepresented his 

actual criminal history and likelihood of recidivism. At a 

sentencing hearing, the district court granted the motion, 

departed to an offense level of twenty-two and a criminal 

history category of VI (carrying an advisory Guidelines range of 

84 to 105 months), and imposed a 105-month sentence. This 

timely appeal followed.

I. Motion to Suppress

In reviewing a district court’s denial of a 

suppression motion, we review the district court’s factual 

determinations for clear error and any legal determinations de 

novo. See United States v. Kelly, 592 F.3d 586, 589 (4th Cir.), 

cert. denied, 130 S. Ct. 3374 (2010). Because the district 

court denied Southerland’s motion, we construe the evidence “in 

the light most favorable to the government.” Id. (citation 

omitted).

The Fourth Amendment guarantees “the right of the 

people to be secure . . . against unreasonable searches and 

seizures” and requires that “searches be conducted pursuant to a 
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warrant issued by an independent judicial officer.” 

California v. Carney, 471 U.S. 386, 390 (1985). An established 

exception to the warrant requirement is the “automobile 

exception.” Kelly, 592 F.3d at 589. Under this exception, 

police may search a vehicle without a warrant if “probable cause 

exists to believe it contains contraband” and the vehicle is 

“readily mobile.” Pennsylvania v. Labron, 518 U.S. 938, 940 

(1996). If both conditions are met, police may conduct a 

warrantless search “that is as thorough as a magistrate could 

authorize in a warrant.” United States v. Ross, 456 U.S. 798, 

800 (1982). Furthermore, such a search may cover all areas of 

the vehicle, including any of its “secret compartments.” United

States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996).

The gravamen of Southerland’s objection to the search 

of his vehicle is that it was not authorized in light of 

Arizona v. Gant, 129 S. Ct. 1710 (2009). In that case, the 

Supreme Court held that a search of a vehicle incident to the 

arrest of the driver is justified “only when the arrestee is 

unsecured and within reaching distance of the passenger 

compartment at the time of the search” or when “it is 

‘reasonable to believe evidence relevant to the crime of arrest 

might be found in the vehicle.’” 129 S. Ct. at 1719 (quoting 

Thornton v. United States, 541 U.S. 615, 632 (2004)).
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Gant did not, however, alter the long-standing rule 

that if officers have “probable cause to believe a vehicle 

contains evidence of criminal activity,” they may search any 

area of the vehicle where evidence of criminal activity may be 

found. Id. at 1721 (citing cases); see United States v. DickeyBey, 393 F.3d 449, 456-57 (4th Cir. 2004) (“We need not, 

however, decide whether the search of Dickey-Bey’s automobile 

was properly incident to his arrest because we conclude that the 

circumstances in this case provided officers independent 

probable cause to search the automobile.”). 

Probable cause exists “where the known facts and 

circumstances are sufficient to warrant a [person] of reasonable 

prudence in the belief that contraband or evidence of a crime 

will be found.” Ornelas v. United States, 517 U.S. 690, 696 

(1996). Probable cause “is a ‘commonsense’ conception that 

deals with ‘the factual and practical considerations of everyday 

life.’” Kelly, 592 F.3d at 592 (quoting Ornelas, 517 U.S. at 

695). In assessing whether probable cause exists, courts must 

“examine the facts from the standpoint of an objectively 

reasonable police officer, giving due weight to inferences drawn 

from those facts by local law enforcement officers.” Id.

(internal quotation marks and ellipsis omitted). 
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On these facts, we have no difficulty in concluding 

that probable cause existed to search Southerland’s vehicle. 

Police tracked the stolen property to the address where the 

vehicle was located and items matching the stolen property were 

seen in plain view inside the vehicle. When police confirmed 

that the items were in fact stolen, they had ample probable 

cause to search the remainder of the vehicle for additional 

stolen items. This is particularly so here, as Marino had not 

had time to inventory his possessions and thus could not be sure 

that the laptop and phone were the only missing items. 

Accordingly, the district court did not err in denying the 

motion to suppress.

II. Breach of Plea Agreement

Southerland next argues that the Government breached 

the plea agreement by failing to “make known to the Court at 

sentencing the full extent of the Defendant’s cooperation.” 

“It is settled that a defendant alleging the 

Government’s breach of a plea agreement bears the burden of 

establishing that breach by a preponderance of the evidence.” 

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). 

Because Southerland did not raise his claim of breach in the 

district court, we review it for plain error. See Puckett v. 
8

United States, 129 S. Ct. 1423, 1428-29 (2009). To prevail 

under this standard, Southerland must show not only that the 

Government plainly breached the plea agreement, but also that he 

was prejudiced by the error and that “the breach was so obvious 

and substantial that failure to notice and correct it [would 

affect] the fairness, integrity or public reputation of the 

judicial proceedings.” United States v. McQueen, 108 F.3d 64, 

66 (4th Cir. 1997) (internal quotation marks omitted). 

On appeal, the Government asserts that Southerland did 

not cooperate or provide any information. Moreover, Southerland 

has failed to even assert on appeal that he made any attempt to 

cooperate with the Government. Under these circumstances, we 

cannot find plain error.

III. Sentence

Southerland claims that the district court imposed an 

unreasonable sentence. He claims that the district court did 

not offer an adequate explanation for its decision to depart 

from the Guidelines range indicated in the PSR. We do not 

agree.

A sentence is reviewed for reasonableness under an 

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

38, 51 (2007). This review requires consideration of both the 
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procedural and substantive reasonableness of a sentence. Id.; 

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

After determining whether the district court properly calculated 

the defendant’s advisory guideline range, we must decide whether 

the district court considered the 18 U.S.C. § 3553(a) (2006) 

factors, analyzed the arguments presented by the parties, and 

sufficiently explained the selected sentence. Lynn, 592 F.3d at 

575-76; see United States v. Carter, 564 F.3d 325, 330 

(4th Cir. 2009). Properly preserved claims of procedural error 

are subject to harmless error review. Lynn, 592 F.3d at 576. 

If the sentence is free of significant procedural error, the 

appellate court reviews the substantive reasonableness of the 

sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007).

When the district court imposes a departure sentence, 

we consider “whether the sentencing court acted reasonably both 

with respect to its decision to impose such a sentence and with 

respect to the extent of the divergence from the sentencing 

range.” United States v. Hernandez-Villanueva, 473 F.3d 118, 

123 (4th Cir. 2007). We have recognized, however, that a 

district court’s error in applying a departure sentence is 

harmless if the sentence is ultimately justified by the 

§ 3553(a) sentencing factors. United States v. Evans, 526 F.3d 
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155, 165 (4th Cir. 2008) (“[E]ven assuming the district court 

erred in applying the Guideline departure provisions, [the 

defendant’s] sentence, which is well-justified by [the] 

§ 3553(a) factors, is reasonable). 

Under USSG § 4A1.3(a)(1), the district court may 

upwardly depart from the Guidelines sentence if the court 

determines 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[.]” The court may consider 

prior sentences not used in computing the criminal history 

category. See USSG § 4A1.3(a)(2)(A). 

Here, the decision to depart upwardly was reasonable. 

The district court discussed at great length Southerland’s 

criminal history and the possibility of recidivism. The court 

noted that Southerland “lack[s] any constructive influence or 

positive guidance, [lacks] any education, [lacks] any meaningful 

work ethic[.]” The court stated that Southerland “has 

completely flouted the law, failed to submit to supervision, has 

even been censured in this district in federal court, and he 

can’t figure out that he has to follow the rules.” The court 

also discussed Southerland’s prior arrests: “motor vehicle 

infractions, 15 counts of breaking and entering; 19 counts of 
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misdemeanor larceny; weapons on an educational property; 11 

counts of misdemeanor possession of stolen goods or property.”

In addition, the extent of the district court’s 

departure was reasonable. In determining the extent of a 

departure under USSG § 4A1.3, the district court must use an 

incremental approach. See § USSG 4A1.3(a)(4)(A); United 

States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); United 

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

incremental approach requires the district court to refer first 

to the next higher category and explain why it fails to reflect 

the seriousness of the defendant’s record before considering a 

higher category. See United States v. Rusher, 966 F.2d 868, 884 

(4th Cir. 1992). However, a sentencing judge is not required 

“to move only one level, or to explain its rejection of each and 

every intervening level.” Dalton, 477 F.3d at 199 (internal 

quotations omitted). 

Here, although not required to do so, the court 

discussed each intervening offense level and explained why each 

was insufficient to account for Southerland’s likelihood of 

recidivism and dangerousness. (Vol. I J.A. 152-53). In 

particularly strong terms, the court concluded that 

Southerland’s 

history is one of complete and utter disregard for any 

rule or any societal norm evidenced in every area, be 
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it school, be it in the workplace, be it in basic 

interaction with persons, including respect for 

personal property. The resort to weaponry is raising 

the dangerousness, and the dabbling in drugs is, as 

well.

(Vol. I J.A. 152-53). We thus conclude without difficulty that 

the district court acted reasonably in departing in the manner 

and to the extent that it did, and that the court fully 

explained its rationale for imposing a departure sentence.

We therefore affirm the judgment of the district 

court. 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