United States v. Jomario Hand , 549 F. App'x 190 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4292
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOMARIO ANTIONE HAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00091-FL-1)
Submitted: December 17, 2013 Decided: December 26, 2013
Before NIEMEYER, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Joshua L. Rogers, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jomario Antione Hand appeals the forty-one month
sentence imposed after he pled guilty, without a plea agreement,
to one count of conspiracy to possess, store, barter, sell, or
dispose of a stolen firearm, in violation of 18 U.S.C. § 371
(2012), and one count of possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j) (2012). We affirm.
On appeal, Hand contends that the court misapplied the
Sentencing Guidelines by relying on relevant conduct to upwardly
depart for under-representation of criminal history, pursuant to
U.S. Sentencing Guidelines Manual (USSG) § 4A1.3 (2012). He
asserts that criminal history and relevant conduct are mutually
exclusive and that a district court “is prohibited from using
relevant conduct to compute the criminal history score and to
upwardly depart based on under-representation of criminal
history.” (Appellant’s Br. at 11). The Government responds
that, because Hand did not assert in the district court the
argument he raises on appeal, plain error review applies. Under
that standard, the district court did not err in upwardly
departing, and even if the court committed procedural error, the
error was harmless in light of the court’s alternative variance
explanation. In reply, Hand argues that he sufficiently
preserved his objection to the departure, and that the court’s
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post hoc variance discussion does not rescue its erroneous
departure sentence.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal citation and quotation marks omitted), cert. denied,
133 S. Ct. 274 (2012). In determining procedural
reasonableness, this court considers whether the district court
properly calculated the defendant’s advisory Guidelines range,
gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,
selected a sentence based on clearly erroneous facts, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-51. In reviewing any sentence outside the Guidelines range,
the appellate court must give due deference to the sentencing
court’s decision because it 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, 364
(4th Cir. 2011) (citing Gall, 552 U.S. at 56).
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In this case, we conclude that Hand sufficiently
preserved the claim he asserts on appeal by stating that he
objected to the upward departure. See United States v. Lynn,
592 F.3d 572, 578-79 (4th Cir. 2010) (“When the sentencing court
has already heard argument and allocution from the parties and
weighed the relevant § 3553(a) factors before pronouncing
sentence, we see no benefit in requiring the defendant to
protest further.”).
Section 4A1.3 authorizes an upward departure when
“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.
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).
Hand argues that the district court erred in
considering relevant conduct as a basis for its departure,
citing three cases from other circuits as support. We conclude
that these cases are distinguishable, as the conduct considered
by the sentencing courts in those cases was used to determine
the defendant’s offense level and cited by the court as a basis
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for an upward departure. In this case, there is no indication
in the record that conduct underlying Hand’s convictions for
breaking and entering was used to determine his offense level.
We also conclude that the district court correctly
considered the full scope of Hand’s prior criminal conduct in
determining whether to depart under § 4A1.3. “In determining
the sentence to impose within the guideline range, or whether a
departure from the guidelines is warranted, the court may
consider, without limitation, any information concerning the
background, character, and conduct of the defendant, unless
otherwise prohibited by law.” USSG § 1B1.4. The district court
did not err in upwardly departing.
Accordingly, we affirm Hand’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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