UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4122

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEROY SINGLETON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (5:07-cr-00164-F-1)

Submitted: July 24, 2008 Decided: September 18, 2008

Before TRAXLER and DUNCAN, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.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 Specialist, Raleigh, North Carolina, for Appellant. George

E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi

Rangarajan, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, Leroy Singleton pled guilty

to mail fraud, in violation of 18 U.S.C.A. § 1341 (West 2000 &

Supp. 2008). At sentencing, the district court departed upward

from the advisory Guidelines pursuant to U.S. Sentencing Guidelines

Manual (“USSG”) § 4A1.3 (2007), because Singleton’s criminal

history category under-represented the seriousness of his past

criminal conduct and the likelihood that he would recidivate.

Singleton was sentenced to a term of seventy months’ imprisonment.

Because the district court speculated that Singleton had likely

been involved in additional criminal activity, we are compelled to

find the district court’s upward departure was unreasonable and

therefore vacate Singleton’s sentence and remand for resentencing.

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

appellate review of a district court’s imposition of a sentence is

for abuse of discretion. Gall v. United States, 128 S. Ct. 586,

597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007). The appellate court must first ensure that the district

court committed no procedural error, such as “failing to calculate

(or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.” Gall, 128 S. Ct. at
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597. In the event the sentencing court decides to impose a

sentence outside the recommended Guidelines range, the sentencing

court “must consider the extent of the deviation and ensure that

the justification is sufficiently compelling to support the degree

of the [departure].” Id.

If there are no procedural errors, we then consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the ‘totality of

the circumstances, including the extent of any variance from the

Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 128 S.

Ct. at 597). While we may presume a sentence within the Guidelines

range to be reasonable, we may not presume a sentence outside the

range to be unreasonable. Id. Moreover, we must give due

deference to the district court’s decision that the § 3553(a)

factors justify imposing a variant sentence and to its

determination regarding the extent of any variance. Id.

A district court may depart upward based on the

inadequacy of the defendant’s criminal history 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. To make that

determination, a court may consider prior sentences not used in the

criminal history calculation, prior sentences of “substantially
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more than one year” comprised of independent crimes committed at

different times, prior similar misconduct resolved by civil or

administrative adjudication, charges pending at the time of

offense, or prior similar conduct that did not result in a

conviction. See USSG § 4A1.3(a)(3)(A-E).

The district court used Singleton’s history of fraudulent

behavior to conclude he had likely engaged in additional criminal

conduct not reflected in the criminal history category. We

conclude that this finding was unduly speculative and that the

court’s reliance on it rendered Singleton’s sentence unreasonable.

Because we cannot determine from the record that the finding “did

not affect the district court’s selection of the sentence imposed,”

Williams v. United States, 503 U.S. 193, 203 (1992), we therefore

vacate the sentence imposed by the district court and remand for

resentencing. 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.

VACATED AND REMANDED