United States v. Samuel Finch , 629 F. App'x 562 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4171
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL MICHAEL FINCH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:14-cr-00025-D-1)
Submitted: November 30, 2015 Decided: December 7, 2015
Before KING, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, C. Michael Anderson, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Michael Finch pled guilty pursuant to a written plea
agreement to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g) (2012). The district
court imposed an upward departure sentence of 72-months’
imprisonment. Finch appeals, arguing that his sentence was both
procedurally and substantively unreasonable. For the reasons
that follow, we affirm.
We review a sentence imposed by a district court for
reasonableness, applying a deferential abuse-of-discretion
standard. United States v. Rivera–Santana, 668 F.3d 95, 100
(4th Cir. 2012). The first step in our review requires us to
ensure that the district court did not commit significant
procedural error, such as improperly calculating the Sentencing
Guidelines range, failing to consider the factors listed in 18
U.S.C. § 3553(a) (2012), or failing to adequately explain the
sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). We then review the sentence for substantive
reasonableness, taking into account the totality of the
circumstances. United States v. Strieper, 666 F.3d 288, 295
(4th Cir. 2012).
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Finch contends that the court erred procedurally in
departing upward based on an inadequate criminal history
category because the court failed to use an incremental approach
as set forth in United States v. Rusher, 966 F.2d 868, 884–85
(4th Cir. 1992), and departed directly from a category III to
category V criminal history. A sentencing court, however, “is
under no obligation to incant the specific language used in the
guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category or offense
level it rejects en route to the category or offense level that
it selects.” Rivera–Santana, 668 F.3d at 104 (internal
quotation marks omitted). The district court observed that it
was required to proceed in incremental fashion and explicitly
rejected Finch’s request for a category IV criminal history
category. As such, we discern no procedural error.
In any event, any procedural error is harmless if “the
upward variance based on the § 3553(a) factors justified the
sentence imposed.” Id. at 104. After addressing the relevant
§ 3553(a) factors, the district court stated that, even if it
had departed in error, it would have imposed the same term of
imprisonment as a variance sentence. Because the district court
expressly noted that it would have imposed the same sentence
under a variance, any procedural error was harmless so long as
the sentence imposed was substantively reasonable. See United
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States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir.), cert.
denied, 135 S. Ct. 305, 384 (2014).
A sentencing court must “impose a sentence sufficient, but
not greater than necessary, to comply with the purposes set
forth in [§ 3553(a)(2)].” 18 U.S.C. § 3553(a). In determining
whether a variance sentence is reasonable, we must consider
whether the degree of variance is supported by the court’s
justification, with a larger variance requiring more substantial
justification. United States v. Diosdado–Star, 630 F.3d 359,
366 (4th Cir. 2011). We will, however, affirm if “the § 3553(a)
factors, on the whole, justified the sentence” imposed. Id. at
367 (internal quotation marks omitted). “Even if we would have
reached a different sentencing result on our own, this fact
alone is insufficient to justify reversal of the district
court.” United States v. Pauley, 511 F.3d 468, 474 (4th Cir.
2007).
The district court adequately explained its sentence by
reference to the 18 U.S.C. § 3553(a) factors, which the court
expressly considered. United States v. Grubbs, 585 F.3d 793,
804 (4th Cir. 2009). The court concluded that, although several
factors weighed in Finch’s favor, ultimately the seriousness of
the crime, Finch’s past criminal history, and high likelihood of
recidivism warranted a longer sentence. The court reasoned that
such a sentence was needed for deterrence, for a just
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punishment, to protect the community. In light of those
factors, the court found that a 72-month sentence was adequate
but not greater than necessary to accomplish the goals of
sentencing set out in § 3553(a).
The district court considered arguments from the parties,
listened to Finch, and explained its sentence, specifically
addressing various § 3553(a) factors. Under these
circumstances, we cannot conclude that the district court abused
its discretion, and we find that the sentence was substantively
reasonable.
Accordingly, we affirm Finch’s 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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