United States v. Chase Ferguson , 594 F. App'x 805 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4184
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHASE DESEAN FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00176-FL-1)
Submitted: October 21, 2014 Decided: December 23, 2014
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker,, United States Attorney,
Jennifer P. May-Parker, Phillip A. Rubin, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chase Desean Ferguson appeals from his 63-month
sentence imposed pursuant to his guilty plea to possession of a
firearm and ammunition by a convicted felon. On appeal,
Ferguson argues that his sentence is substantively unreasonable
due to the extent of the departure imposed pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3 (2013)
(under-representation of criminal history category). We affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States, 552 U.S. 38, 51 (2007). 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, 473 F.3d 118,
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, 630 F.3d 359,
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364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)) (alteration omitted).
Where, as here, the defendant does not challenge the
procedural reasonableness of his sentence, we review the
sentence only for substantive reasonableness, applying the
abuse-of-discretion standard. Gall, 552 U.S. at 51; United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A district
court may depart upward 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, 550 F.3d 326,
341 (4th Cir. 2008) (noting that an under-representative
criminal history category is an encouraged basis for departure).
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.
Ferguson argues that the court’s departure to Criminal
History Category VI exaggerated the importance of his prior
unscored convictions, which were all committed during a
relatively short period of time. However, the district court
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was well within its discretion to consider a large number of
prior convictions that did not result in any criminal history
points. Moreover, the court did not rely exclusively on these
unscored convictions to support the upward departure. It also
considered that Ferguson committed the instant offense shortly
after being released from prison, that he had been leniently
treated in the past, * that he faced pending charges, and that he
*
Ferguson contends that the district court erred in
concluding that North Carolina had treated him leniently. He
draws an analogy to our recent decision in United States v.
Davis, 720 F.3d 215 (4th Cir. 2013). In Davis, the defendant
had received one consolidated sentence for multiple violations
of North Carolina law, and the district court sentenced him as a
career offender based on that state court judgment. Id. at 216.
The defendant argued that the district court erred by applying
the career offender enhancement “because under the plain
language of the Guidelines, a single consolidated sentence
cannot be counted as separate sentences.” Id. at 217. We
agreed, holding “that where a defendant receives a consolidated
sentence (or consolidated judgment) under North Carolina law, it
is one sentence and absent another qualifying sentence, the
[career offender] enhancement is inapplicable.” 720 F.3d at 219
(internal quotation marks omitted). In reaching this
conclusion, we relied, in part, on the “well-established
federalism principles which do not permit a federal court to
reject North Carolina’s judgment as to the seriousness of a
North Carolina crime, prosecuted in a North Carolina court and
adjudicated by a North Carolina judge, merely because the
federal court might expect a more serious punishment.” Id.
(internal quotation marks and brackets omitted).
Ferguson contends that, just as the Davis court directed
district courts to respect North Carolina’s sentencing scheme
when considering whether to apply the career offender
enhancement, district courts similarly should respect North
Carolina’s treatment of consolidated convictions when
considering whether a defendant’s criminal history category is
adequate. We conclude that Ferguson’s argument is flawed. In
(Continued)
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posed a danger to the community. Finally, the court carefully
considered the intervening criminal history levels and
explicitly concluded that they were insufficient to meet the
goals of sentencing. We conclude that the extent of the
district court’s departure from the Guidelines was permissible
and that its justifications were sufficiently compelling. See
United States v. McNeill, 598 F.3d 161, 166-67 (4th Cir. 2010)
(affirming upward departure under § 4A1.3).
For these reasons, 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
addition to principles of federalism, we relied in Davis on the
plain language of the career offender enhancement, which makes
clear “that there must be more than one prior sentence for the
enhancement to apply.” Id. at 219. Thus, the focus for a
sentencing court when determining whether a defendant qualifies
as a career offender is the number of sentences, while the
factors involved in a departure for under-representation of
criminal history does not depend on how many “sentences” the
defendant received. As the Davis court clarified, Davis “d[id]
not turn on state law,” but “rest[ed] on what the plain language
of the Guidelines demands.” Id. at 220.
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