UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4984

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN L. GAYLES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

Judge. (3:08-cr-00438-HEH-1)

Submitted: August 26, 2010 Decided: September 17, 2010

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond, 

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

Attorney, Kevin C. Nunnally, Special Assistant United States 

Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kevin L. Gayles was convicted by a jury of possessing 

five grams or more of cocaine base (crack), in violation of 21 

U.S.C.A. § 844 (West 1999 & Supp. 2010). The district court 

departed above the sentencing guideline range under U.S. 

Sentencing Guidelines Manual § 4A1.3, p.s. (2008), and sentenced 

Gayles to a term of 180 months imprisonment. Gayles appeals his 

sentence, contending that the district court erred in denying 

his motion for a downward departure and granting the 

government’s upward departure motion. He also argues that the 

sentence is unreasonable because it is greater than necessary 

and failed to provide for his needs. We affirm.

Gayles had thirty-four criminal history points 

resulting from two prior state convictions for cocaine 

trafficking and numerous other offenses, but he had received 

consistently lenient sentences. Gayles had recently been tried 

and acquitted of first degree murder; the jury convicted him of 

use of a firearm in connection with the murder. At Gayles’ 

sentencing hearing, the murder victim’s girlfriend testified 

that she drove the victim to a meeting with Gayles, waited while 

Gayles and the victim went behind an apartment building and 

heard several shots, after which Gayles reappeared, robbed her 

at gunpoint, and took her car. A detective testified that, 

before he died in the hospital, the victim identified Gayles by 
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his nickname (“Black”) as the one who shot him. The district 

court decided that the evidence supported a finding that Gayles 

was responsible for the armed robbery and carjacking, but that 

it would respect the jury’s acquittal of Gayles on the murder 

charge. 

The court decided that criminal history category VI 

did not adequately reflect Gayles’ criminal conduct. The court 

considered the guideline ranges that would result from an 

increase to successively higher offense levels in criminal 

history category VI, and determined that offense level 29, and a 

range of 151-188 months, was adequate but not greater than 

necessary to achieve the sentencing objectives set out in 18 

U.S.C. § 3553(a) (2006). The court departed upward*

We review sentences 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 

procedural and substantive reasonableness of a sentence. Id.; 

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

2010). Procedural reasonableness review involves first

determining whether the district court properly calculated the 

and imposed 

a sentence of 180 months imprisonment. 

 * Although Gayles consistently refers to his sentence as a 

variance, the court departed rather than varied above the 

guideline range.
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defendant’s advisory guideline range, then deciding whether the 

district court considered the § 3553(a) factors, analyzed the 

arguments presented by the parties, and sufficiently explained 

the selected sentence. Lynn, 592 F.3d at 575; see United 

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding 

that, while the “individualized assessment need not be elaborate 

or lengthy, . . . it must provide a rationale tailored to the 

particular case . . . and [be] adequate to permit meaningful 

appellate review.”) (internal quotation marks omitted). 

Finally, we review the substantive reasonableness of the 

sentence, examining “the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding 

that the sentence it chose satisfied the standards set forth in 

§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216 

(4th Cir. 2010). 

Here, the district court’s decision to depart above 

the guideline range was adequately explained by the court and 

supported by the record, given Gayles’ high criminal history 

score, the fact that he had not served any significant state 

sentence despite prior convictions for two drug trafficking 

offenses, and the court’s finding that he had at the very least 

robbed and carjacked the murder victim’s girlfriend. The court 

structured the departure by increasing the offense level until 

it found the appropriate guideline range, as directed in 
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§ 4A1.3(a)(4)(B). In considering the § 3553(a) factors, the 

court focused primarily on the need to promote respect for the 

law and to protect the community. 18 U.S.C. § 3553(a)(2)(A), 

(C). The court’s explanation was sufficient under Lynn. 

Gayles argues that a sentence within the guideline 

range would better afford him the opportunity for drug 

treatment, further education, and “other rehabilitation” to 

better ensure that he would not commit other crimes upon his 

release. However, the district court addressed this argument at 

sentencing by noting that Gayles’ past probationary sentences 

had not produced a good result, and that he would be able to 

participate in drug treatment as well as educational and 

vocational programs while serving his federal sentence. We 

conclude that the sentence was reasonable. 

We therefore affirm the sentence imposed by 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