United States v. Hardiso ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4522
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN HARDISON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00278-BR-2)
Submitted: February 24, 2010 Decided: March 19, 2010
Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Hardison appeals the 197-month sentence
imposed after he pled guilty, pursuant to a plea agreement, to
one count of conspiracy to distribute and possess with intent to
distribute fifty grams or more of crack cocaine, 500 grams or
more of cocaine, and a quantity of marijuana, in violation of 21
U.S.C. §§ 846, 841(a)(1) (2006). We affirm.
In the presentence report (PSR), the probation officer
recommended a total offense level of twenty-seven and a criminal
history category of VI, which resulted in a sentencing range of
130 to 162 months of imprisonment. The PSR also noted that
Hardison’s extensive criminal history might warrant an upward
departure pursuant to U.S. Sentencing Guidelines Manual (USSG)
§ 4A1.3(a) (2008). Hardison did not object to the PSR.
Before sentencing, the Government filed a motion for a
downward departure pursuant to USSG § 5K1.1 based on Hardison’s
substantial assistance. At sentencing, the district court
adopted the factual findings and Guidelines calculations in the
PSR, without objection. The Government orally moved for an
upward departure on the ground that Hardison’s criminal history
category under-represented the seriousness of his past criminal
conduct and the likelihood that he would continue to commit
crimes. The district court granted the Government’s motion for
an upward departure and departed upward to offense level thirty-
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four, which increased the sentencing range to 262 to 327 months.
The court then granted the Government’s substantial assistance
motion and departed downward to a sentence of 197 months of
imprisonment.
On appeal, Hardison first argues that the district
court imposed a procedurally unreasonable sentence by failing to
consider the factors in 18 U.S.C. § 3553(a) (2006), with the
exception of Hardison’s criminal history, which was considered
only as it related to the Government’s motion for upward
departure. This court reviews a sentence for reasonableness
under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. After determining whether
the district court properly calculated the defendant’s advisory
Guidelines range, this court must consider whether the district
court considered the § 3553(a) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-51. “Regardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an ‘individualized
assessment’ based on the particular facts of the case before
it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009).
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Our review of the record leads us to conclude that the
district court did not procedurally err in its determination or
explanation of Hardison’s sentence. Hardison argued that “the
history and characteristics of the defendant,” 18 U.S.C.
§ 3553(a)(1), did not warrant an upward departure, but supported
a sentence at the statutory minimum. The district court
discussed in detail Hardison’s criminal history, the indications
that he would continue to commit crime, and the need to protect
the public from Hardison’s crimes. Although the court did not
discuss Hardison’s drug addiction or employment opportunities,
such omission was not error. The district court adequately
addressed the relevant § 3553(a) factors and explained its
sentencing determination in terms specific to Hardison.
Hardison also argues that his sentence is
substantively unreasonable because the district court based its
decision to upwardly depart on the number of his prior
convictions rather than on the seriousness of his criminal
record. This court reviews the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). “If the
district court decides to impose a sentence outside the
Guidelines range, it must ensure that its justification supports
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the ‘degree of the variance’; thus, ‘a major departure should be
supported by a more significant justification than a minor
one.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (quoting Gall, 552 U.S. at 50). This court “may consider
the extent of the deviation [from the recommended Guidelines
range], but must give due deference to the district court’s
decision that the § 3553(a) factors, as a whole, justify the
extent of the variance.” Gall, 552 U.S. at 51. That this court
would have reached a different result in the first instance is
an insufficient reason to reverse the district court’s sentence.
Id.
A district court may depart upward from the Guidelines
range under USSG § 4A1.3(a) when “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). This
court has stated that “[s]ection 4A1.3 was drafted in classic
catch-all terms for the unusual but serious situation where the
criminal history category does not adequately reflect past
criminal conduct or predict future criminal behavior.” United
States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). “In
determining whether an upward departure from Criminal History
Category VI is warranted, the court should consider that the
nature of the prior offenses rather than simply their number is
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often more indicative of the seriousness of the defendant’s
criminal record.” USSG § 4A1.3, comment. (n.2(B)). In deciding
the extent of a departure in the case of a defendant who is
already in criminal history category VI, “the court should
structure the departure by moving incrementally down the
sentencing table to the next higher offense level in Criminal
History Category VI until it finds a guideline range appropriate
to the case.” USSG § 4A1.3(a)(4)(B).
Contrary to Hardison’s argument, the district court’s
explanation reveals that the court considered the nature of his
prior crimes in addition to their number. The PSR reveals that
Hardison has a total of twenty-eight misdemeanor and seventy
felony convictions. Seventeen of the misdemeanor and fifty-five
of the felony convictions received no criminal history points in
the Guidelines calculation. Moreover, Hardison’s criminal
history includes multiple instances in which he received a
sentence of probation that was later revoked upon his commission
of additional crimes. Finally, although the majority of
Hardison’s crimes were property-related, many of his convictions
involved breaking and entering, which presents a risk of
confrontation by the owner of the property. The district
court’s decision to depart was supported by the evidence, and
the extent of the departure was reasonable.
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Accordingly, we affirm Hardison’s sentence. 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
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