UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4096

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICHARD CARROLL OLIVER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

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

District Judge. (5:06-cr-00078-D)

Submitted: July 20, 2007 Decided: August 3, 2007

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.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, Jennifer May-Parker, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Richard C. Oliver pled guilty to possessing a firearm

after having been convicted of a crime punishable by a term of

imprisonment exceeding one year, in violation of 18 U.S.C.

§§ 922(g)(1) and 924 (2000). The Government moved for an upward

departure under USSG §§ 4A.3, 5K2.6 because Oliver’s criminal

history category under-represented the seriousness of his criminal

history or the likelihood that he would commit future crimes, and

because the firearm was used in the commission of the offense. The

district court upwardly departed two levels, sentencing Oliver to

68-months in prison.

Oliver appealed his sentence and contends his sentence

was unreasonable because the district court erred in upwardly

departing from the advisory guidelines range. He argues that the

conduct underlying the departure for discharging the firearm was

already accounted for by the four-level enhancement under USSG

§ 2K2.1(b)(6) for using a firearm in connection with another

felony, thus the departure amounted to double-counting. Finding no

error, we affirm.

After United States v. Booker, 543 U.S. 220 (2005), a

district court is no longer bound by the range prescribed by the

sentencing guidelines. In reviewing a sentence outside the

guidelines range, this court must consider “whether the sentencing

court acted reasonably both with respect to its decision to impose
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such a sentence and with respect to the extent of the divergence

from the guideline range.” United States v. Hernandez-Villanueva,

473 F.3d 118, 123 (4th Cir. 2007). A sentence is unreasonable if

the “court provides an inadequate statement of reasons or relies on

improper factors in imposing a sentence outside the properly

calculated advisory sentence range.” Id. A district court may

depart upward from the guidelines range under USSG § 5K2.6 if a

firearm was used or possessed. “The extent of the increase

ordinarily should depend on the dangerousness of the weapon, the

manner in which it was used, and the extent to which its use

endangered others.” Specifically, “the discharge of a firearm

might warrant a substantial increase.” USSG § 5K2.6. 

The district court granted the upward departure because

it found the weapon was fired by Oliver in the vicinity of the

intended victim and in the direction of a bus occupied by children,

and was an attempt to cause serious injury to the victim. The

court found this conduct was not a part of the guideline

calculations and merited an upward departure. The four-level

enhancement under USSG § 2K2.1(b)(6) accounted for Oliver’s attempt

to cause serious harm to the victim, but did not account for the

extreme recklessness in discharging a firearm in the vicinity of

uninvolved children. Thus, the upward departure did not amount to

unlawful double-counting. In the alternative, a departure pursuant

to § 4A1.3 is encouraged, provided that the criminal history
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category does not account adequately for the defendant’s past

criminal conduct or the likelihood that he will commit other

crimes. United States v. Dixon, 318 F.3d 585, 588 (4th Cir. 2003).

The district court sentenced Oliver post-Booker and

appropriately treated the guidelines as advisory. The court

sentenced Oliver after considering and examining the sentencing

guidelines and the § 3553(a) factors, as instructed by Booker. The

district court accepted the facts found in the presentence

investigation report, and the testimony of the witness to the

conduct, and found Oliver’s offense level to be 23 and his criminal

history score to be III, for a corresponding advisory guideline

range of 57 to 71 months.

The district court examined the § 3553(a) factors and

concluded that the factors set forth therein supported an upward

departure from the guidelines range. The court discussed the

seriousness of Oliver’s offense and the risk it created to both the

victim and the children. Moreover, the court looked at the

likelihood that Oliver would commit further crimes, the need to

protect the public, and his extensive criminal history. The court

imposed the 68-month sentence to afford adequate deterrence from

future criminal acts and to promote respect for the law. On this

record, we have no difficulty concluding that the district court
*

“The district court need not discuss each factor set forth in

§ 3553(a) ‘in checklist fashion;’ ‘it is enough to calculate the

range accurately and explain why (if the sentence lies outside it)

this defendant deserves more or less.’” United States v. Moreland,

437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006)

(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).

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sufficiently articulated its reasons for the departure from the

guidelines range.*

Accordingly, we affirm the district court’s judgment. 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