UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4327

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTWAIN LAMAR DENNIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00226-FL-1)

Submitted: October 23, 2012 Decided: December 3, 2012

Before WILKINSON and DIAZ, 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Affirmed by unpublished per curiam opinion.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, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Antwain Lamar Dennis pled guilty to unlawful

possession of a firearm by a felon in violation of

(g)(1) (2006) and was sentenced to eighty-four months of

imprisonment. On appeal, Dennis alleges that the district court

erred when it imposed an upward departure sentence. For the

reasons that follow, we affirm.

As clearly discussed by the district court at the

sentencing hearing, it departed upward by three levels under

U.S. Sentencing Guidelines Manual (“USSG”) § 5K2.6, p.s.,

because Dennis used the gun at issue to threaten his girlfriend

and discharged the gun in a residence where other women and

children were present. These facts were extant in Dennis’

presentence report; the court found, however, that Dennis’

statements to police, that he found the gun in the backyard and

that the gun accidently discharged after he fell over a couch,

were simply incredible. See United States v. Terry,

(4th Cir. 1990) (“The burden is on the defendant to

show the inaccuracy or unreliability of the presentence

report.”). We conclude that the district court’s factual

findings regarding his use of the gun were not procedurally

erroneous. Gall v. United States,

(2007).

Moreover, in light of these factual findings, the district

court's upward departure was reasonable under USSG § 5K2.6, p.s.

2 Accordingly, we affirm. 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

3