UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4557


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMES JACOB PARRISH, JR.,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:17-cr-00347-TLW-1)


Submitted: March 28, 2019                                         Decided: April 11, 2019


Before KING, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kimberly H. Albro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Sherri A. Lydon,
United States Attorney, Stacey Denise Haynes, Assistant United States Attorney,
Kathleen Michelle Stoughton, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       James Jacob Parrish, Jr., appeals the sentence imposed by the district court after

his guilty plea to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)

(2012). Parrish argues that the district court erred in determining that the North Carolina

offense of second-degree murder is a crime of violence under U.S. Sentencing Guidelines

Manual § 2K2.1(a)(2) (2016), as that term is defined in USSG § 4B1.2(a). Parrish also

contends on appeal that the district court imposed a procedurally and substantively

unreasonable sentence when it departed upward from the established Guidelines range

and denied his motion for a downward variance. Finding no error, we affirm.

       We review a sentence for reasonableness, applying “an abuse-of-discretion

standard.” Gall v. United States, 

, 51 (2007). We first review for “significant

procedural error,” and if the sentence is free from such error, we then consider

substantive reasonableness. 

includes “improperly calculating[] the

Guidelines range, . . . failing to consider the [18 U.S.C.] § 3553(a) [2012] factors, . . . or

failing to adequately explain the chosen sentence.” 

examines 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, 

, 216 (4th Cir. 2010).

                                                  I.

       In considering Parrish’s claim that the district court procedurally erred in

calculating his base offense, we note that when a defendant is sentenced for unlawfully

possessing a firearm, the base offense level is 24 “if the defendant committed any part of

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the instant offense subsequent to sustaining at least two felony convictions of either a

crime of violence or a controlled substance offense.” * USSG § 2K2.1(a)(2). Without the

qualifying prior convictions, the base offense level is lower. See USSG § 2K2.1(a). The

Guidelines define “crime of violence” as:

       any offense under federal or state law, punishable by imprisonment for a
       term exceeding one year, that—

       (1) has as an element the use, attempted use, or threatened use of physical
       force against the person of another, or

       (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a
       forcible sex offense, robbery, arson, extortion, or the use or unlawful
       possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
       material as defined in 18 U.S.C. § 841(c).

USSG § 4B1.2(a).

       Because Parrish failed to object to the USSG § 2K2.1(a)(2) enhancement at

sentencing, we review the enhancement’s application for plain error. United States v.

Cohen, 

, 678 (4th Cir. 2018). “To prevail on plain error review, an appellant

must show (1) that the district court erred, (2) that the error was plain, and (3) that the

error affected his substantial rights.” 

“If each of those three requirements are

satisfied, we possess discretion on whether to recognize the error, but . . . should not do

so unless the error seriously affects the fairness, integrity or public reputation of judicial

proceedings.” 

marks omitted).




       *
           Parrish does not dispute that he has a qualifying controlled substance conviction.


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       In determining whether a prior conviction qualifies as a crime of violence, we use

the categorical approach. United States v. Mack, 

, 585-86 (4th Cir. 2017).

“Under the categorical approach, the sentencing court must look only to the statutory

definitions of the prior offenses and may not look to the particular facts underlying those

convictions.” United States v. Flores-Granados, 

, 491 (4th Cir. 2015)

(alteration and internal quotation marks omitted).

       North Carolina second-degree murder is “the unlawful killing of a human being

with malice but without premeditation and deliberation.”       State v. Thibodeaux, 

, 806 (N.C. 2000) (internal quotation marks omitted). “[T]he element of

malice in second-degree murder is proved by intentional conduct, [and] a defendant need

only intend to commit the underlying act that results in death.” State v. Coble, 

, 48 (N.C. 2000). “[U]nlawfully killing another human being requires the use

of force capable of causing physical pain or injury to another person.” In re Irby, 

, 235 (4th Cir. 2017) (internal quotation marks omitted). “[F]orce,” as used in

the force clause, means “force capable of causing physical pain or injury to another

person.” 

(internal quotation marks omitted). Because North Carolina second-

degree murder requires the unlawful killing of a human being, we conclude that it

qualifies as a crime of violence under USSG § 4B1.2(a). Accordingly, Parrish fails to

establish error, plain or otherwise.

                                            II.

       Turning to Parrish’s claims that the district court’s upward departure under USSG

§ 4A1.3 and upward variance under 18 U.S.C. § 3553(a) rendered his sentence both

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procedurally and substantively unreasonable, we note that the deferential abuse-of-

discretion standard described above applies to the reasonableness of any sentence,

“whether inside, just outside, or significantly outside the Guidelines range.” United

States v. King, 

, 283 (4th Cir. 2012); see 

. When the

district court imposes a departure or variance 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, 

, 123 (4th Cir. 2007). The district

court “has flexibility in fashioning a sentence outside of the Guidelines range” and need

only “set forth enough to satisfy the appellate court that it has considered the parties’

arguments and has a reasoned basis” for its decision. United States v. Diosdado-Star,

, 364 (4th Cir. 2011) (alteration and internal quotation marks omitted). In

reviewing a sentence outside the Guidelines range, we “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” 

.

       A district court may upwardly depart from an applicable Guidelines range “[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.” USSG § 4A1.3(a)(1), p.s.; see United States v.

Whorley, 

, 341 (4th Cir. 2008) (noting that an underrepresentative criminal

history category is an encouraged basis for departure). The Sentencing Commission

“drafted [USSG § 4A1.3] in classic catch-all terms for the unusual but serious situation

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where the [defendant’s] criminal history category does not adequately reflect past

criminal conduct or predict future criminal behavior.” United States v. Lawrence, 

, 730 (4th Cir. 2003). To determine whether a departure sentence is appropriate

in such circumstances, the Guidelines state that a court may consider prior sentences not

used in the criminal history calculation or prior conduct not resulting in a conviction.

USSG § 4A1.3(a)(2), p.s.

       Here, the district court explained at length its reasons for the departure, the upward

variance, and the denial of Parrish’s motion for a downward variance. See United States

v. Carter, 

, 328 (4th Cir. 2009) (discussing district court’s obligation to

conduct “individualized assessment” of facts). In addition to citing Parrish’s unscored

convictions, the court highlighted Parrish’s serious and dangerous conduct in the instant

offense and his serious and violent past offenses, all leading the court to conclude that

Parrish represented a risk to himself and others. Thus, our review of the record leads us

to conclude that the district court did not err in applying an upward departure based on

prior uncharged criminal conduct, see USSG § 4A1.3(a)(2), p.s., or an upward variance

based on the § 3553(a) analysis such that there is no procedural infirmity. Further,

reviewing the totality of the circumstances, we conclude that the district court did not

abuse its discretion and that Parrish’s sentence is substantively reasonable.

       We therefore affirm the district court’s judgment.          We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                                AFFIRMED

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