United States v. William McLaughlin , 623 F. App'x 617 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM EARL MCLAUGHLIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00097-F-1)
Submitted: October 30, 2015 Decided: December 3, 2015
Before KING, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
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Unpublished opinions are not binding precedent in this circuit.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:
William Earl McLaughlin challenges the reasonableness of
the 30-month sentence imposed by the district court following
his conviction, pursuant to a guilty plea, for bank theft, in
violation of 18 U.S.C. § 2113(b) (2012). In imposing the
sentence, the district court departed upward from the Sentencing
Guidelines range, concluding that McLaughlin’s criminal history
category “substantially underrepresent[ed] the seriousness of
[his] criminal history or the likelihood that [he] will commit
other crimes.” U.S. Sentencing Guidelines Manual § 4A1.3, p.s.
(2013). We affirm.
We “review all sentences—whether inside, just outside, or
significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). Where, as here, the defendant does not assert
procedural sentencing error, we turn our attention to the
substantive reasonableness of the sentence, considering “the
totality of the circumstances,” id. at 51, and determining
“whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in [18 U.S.C.] § 3553(a) [(2012)],” United States v.
Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir.) (internal quotation
marks omitted), cert. denied, 135 S. Ct. 305 (2014), and cert.
denied, 135 S. Ct. 384 (2014). “An appellate court owes ‘due
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deference’ to a district court’s assessment of the § 3553(a)
factors, and mere disagreement with the sentence below is
‘insufficient to justify reversal of the district court.’”
United States v. Howard, 773 F.3d 519, 531 (4th Cir. 2014)
(quoting Gall, 552 U.S. at 51).
McLaughlin contends that the district court abused its
discretion by upwardly departing under USSG § 4A1.3, p.s.,
because his criminal history, though lengthy, primarily included
misdemeanor convictions and non-violent offenses. He contends
that the court relied too heavily upon his early criminal
history. The district court noted, however, that McLaughlin,
currently age 51, began his criminal conduct at age 16, and “has
consistently stolen from, robbed, and burglarized others since
that time.” The court noted McLaughlin’s history for violent
offenses, including robbery with a dangerous weapon, breaking
and entering, and assault on a female. The court also
considered that McLaughlin had been convicted of driving while
impaired and failure to stop for a blue light—offenses that
involve a risk of danger to others. Although the majority of
McLaughlin’s convictions were for misdemeanor offenses, we note
that nothing in the language of USSG § 4A1.3, p.s., prevented
the district court from relying on these unscored convictions in
assessing McLaughlin’s criminal history, and we conclude that it
did not abuse its discretion by doing so.
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McLaughlin also argues that the district court failed to
properly consider all the sentencing factors, particularly the
nature and circumstances of the instant offense. While the
sentencing court is required to consider all the sentencing
factors, it “need not ‘explicitly discuss’ each factor ‘on the
record’ or ‘robotically tick through § 3553(a)’s every
subsection.’” United States v. Rivera-Santana, 668 F.3d 95, 105
(4th Cir. 2012) (quoting United States v. Johnson, 445 F.3d 339,
345 (4th Cir. 2006)). Although the court did not expressly
discuss each of the sentencing factors, it is evident from the
record that the court considered all the factors, including the
nature and circumstances of the instant offense.
McLaughlin next argues that his departure sentence creates
unwarranted sentencing disparities between him and other
defendants who received within-Guidelines sentences after being
convicted of bank theft and having the same total offense level
and criminal history category as McLaughlin. He supports this
argument with the fact that the Government recommended that the
court depart upward to 24 months, rather than the 30 months to
which the court departed. We disagree. The Sentencing
Commission’s adoption of the USSG § 4A1.3, p.s., departure
renders the resulting sentencing disparity between McLaughlin
and his putative comparators warranted. See 18 U.S.C.
§ 3553(a)(6); cf. Gall, 552 U.S. at 54. Although a sentencing
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disparity based on a USSG § 4A1.3, p.s., departure might be
unwarranted if the departure is inappropriately applied, the
imposition of the departure, by itself, cannot be grounds for
concluding that the resulting disparity is unwarranted.
Because McLaughlin has offered no meritorious reason why we
should not defer to the district court’s judgment, we conclude
that the sentence imposed on McLaughlin is substantively
reasonable. Accordingly, we affirm McLaughlin’s 30-month
sentence. 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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