UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4483

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GLENN BARRY MCDOUGALD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

District Judge. (7:08-cr-00092-D-1)

Submitted: July 14, 2010 Decided: August 6, 2010

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

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

Assistant Federal Public Defender, James E. Todd, Jr., Research 

and Writing Attorney, Raleigh, North Carolina, for Appellant. 

George E. B. Holding, United States Attorney, Banumathi 

Rangarajan, Assistant United States Attorney, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Glenn Barry McDougald pled guilty to possession of a 

firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924 

(2006), and was sentenced as an armed career criminal to a term 

of 324 months of imprisonment. McDougald argues on appeal that 

his sentence is unreasonable because the district court’s fourlevel departure above the Sentencing Guidelines range pursuant 

to U.S. Sentencing Guidelines Manual § 4A1.3 (2008) was 

unwarranted. We affirm.

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 

procedural and substantive reasonableness of a sentence. Id. 

After determining whether the district court properly calculated 

the defendant’s advisory guideline range, the appellate court 

considers 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. 

Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th 

Cir. 2009). Finally, the appeals court reviews the substantive 

reasonableness of the sentence, “taking into account the 

totality of the circumstances, including the extent of any 

variation from the Guidelines range.” Gall, 552 U.S. at 51. 
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When reviewing a departure, 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). Under USSG § 4A1.3(a)(1), “[i]f 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, an upward departure may be 

warranted.” Additionally, upward departures from the highest 

criminal history category, VI, are specifically contemplated by 

the guidelines. Commentary to USSG § 4A1.3, p.s., provides: 

“In 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, a departure above the guideline range for a defendant 

with Criminal History Category VI may be warranted.” USSG 

§ 4A1.3, comment. (n.2(B)). Furthermore, commentary to the 

armed career criminal guideline reflects that an upward 

departure pursuant to USSG § 4A1.3, p.s., will be appropriate in 

some cases when the defendant is sentenced as an armed career 

criminal. See USSG § 4B1.4, comment. (back’d.) (“In some cases, 

the criminal history category may not adequately reflect the 
4

defendant’s criminal history.”); see also United States v. 

McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (rejecting argument 

that an upward departure is contemplated only where armed career 

criminals have a criminal history category IV or V). 

Here, the district court’s decision to depart upwardly 

was reasonable. The district court noted that McDougald had

committed thirty-one prior felonies and eight misdemeanors; 

highlighted McDougald’s multitude of unscored offenses; and 

repeatedly remarked on McDougald’s staggering propensity to 

commit serious offenses and his unwillingness to conform to the 

law. In fact, the court noted McDougald continued to engage in 

illegal conduct while incarcerated and on probation. McDougald 

had four times the number of predicate crimes necessary for an 

armed career criminal sentence. The record therefore supports 

the court’s conclusion that McDougald’s armed career criminal 

designation failed to adequately reflect both the seriousness of 

his criminal history and his likelihood of recidivism. 

In addition, we conclude 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); McNeill, 598 

F.3d at 166; 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 
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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). “And 

while a court should indicate its reasons for departing upward 

under section 4A1.3, it need not . . . go through a ritualistic 

exercise in which it mechanically discusses each criminal 

history category or offense level it rejects en route to the 

category or offense level that it selects.” Id. (internal 

quotations and brackets omitted).

With respect to the degree of departure, the court 

employed the methodology required by USSG § 4A1.3, p.s., for 

crafting an upward departure when even criminal history category 

VI is insufficient. Having found McDougald’s total offense 

level of thirty was inadequate, the district court “mov[ed] 

incrementally down the sentencing table to the next higher 

offense level in Criminal History Category VI until it [found] a 

guideline range appropriate to the case.” USSG 

§ 4A1.3(a)(4)(B), p.s. The district court specifically found 

that offense levels thirty-one through thirty-three were not 

adequate to reflect the seriousness of the defendant’s criminal 

history or the likelihood that he will commit future crimes, 
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including violent crimes. The court also properly rejected 

McDougald’s argument that an upward departure effectively denied 

McDougald’s acceptance of responsibility, noting that the upward 

departure was about his criminal history and his likelihood of 

recidivism.

We conclude the district court’s decision to depart 

under § 4A1.3 was factually supported and that the resulting 

sentence was reasonable. Moreover, the court adequately 

explained its reasons for the departure. We therefore affirm 

McDougald’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