United States v. Markeith Hart , 625 F. App'x 209 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4206
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARKEITH HART, a/k/a Scrap,
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-00207-F-1)
Submitted: December 17, 2015 Decided: December 21, 2015
Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C.
WHITE, P.C., Chapel Hill, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Markeith Hart appeals from the 87-month sentence imposed
after he pleaded guilty to possession of an unregistered
National Firearms Act weapon, in violation of 26 U.S.C. §§ 5841,
5861(d), 5871 (2012). The district court departed upward based
on U.S. Sentencing Guidelines Manual §§ 4A1.3, 5K2.21 (2014),
concluding that dismissed conduct and a substantially
underrepresented criminal history supported the departure.
Finding no error, we affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007); United States v. Lymas, 781 F.3d
106, 111 (4th Cir. 2015). Because Hart did not object to the
upward departure at sentencing, we review for plain error
whether the court procedurally erred in departing upward.
United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). *
Hart argues that the court did not explain why criminal
history category IV substantially underrepresented the
* Hart requested a sentence at the low end of the Guidelines
range established after the upward departure applied. While
this preserved a challenge to the substantive reasonableness of
the sentence, the court’s determination that Hart qualified for
an upward departure was unchallenged in the objections to the
presentence report and at sentencing. See Lynn, 592 F.3d at
578.
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seriousness of his criminal history or the likelihood that he
would commit other crimes. He further contends that his prior
convictions had already been counted in determining his criminal
history category and were impermissibly considered under
§ 5K2.21 and that the district court did not identify any
additional conduct that supported application of § 5K2.21.
When reviewing a variance or departure, this court
considers 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. McNeill, 598 F.3d 161, 166 (4th Cir.
2010). An upward departure may be warranted if “reliable
information indicates that the defendant’s criminal history
category significantly underrepresents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1). A
district court may base an upward departure pursuant to § 4A1.3
on a defendant’s prior convictions, even if those convictions
are too old or otherwise not counted in the calculation of the
Sentencing Guidelines range. See USSG § 4A1.3(a)(2).
When the district court applied an upward departure in part
under USSG § 5K2.21, it permissibly relied on the nature and
seriousness of the dismissed count of felon in possession of a
firearm. Reviewed as a whole, this record supports the court’s
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consideration of the dismissed count and reveals that no conduct
or criminal history was impermissibly double-counted. Further,
the court gave an adequate explanation of its reasons for
departing upward based on the underrepresentation of Hart’s
criminal history. Thus, no error, plain or otherwise, resulted.
Accordingly, we affirm the 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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