United States v. Janell Fisher ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4502
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JANELL TOVAH FISHER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cr-00024-HEH-1)
Submitted: January 27, 2014 Decided: February 11, 2014
Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Bodner, Fairfax, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Erik S. Siebert, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Janell Tovah Fisher appeals from the 120-month
sentence imposed by the district court after his guilty plea to
possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal, Fisher claims
that his sentence is procedurally and substantively unreasonable
because the district court (1) overstated his criminal history
and failed to consider the 18 U.S.C. § 3553(a) (2012) factors
when imposing an upward variance; (2) failed to consider
unwarranted sentencing disparities that could result from the
imposition of the upward variance; and (3) imposed an
excessively lengthy upward variance. We affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46, 51 (2007). We first review for significant procedural
error, and, if the sentence is free from such error, we then
consider the substantive reasonableness of the sentence. Id. at
51. Procedural error includes “improperly calculating[] the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, . . . or failing to
adequately explain the chosen sentence.” Id. Substantive
reasonableness is determined by considering “the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id. An upward variance is permitted where
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justified by the § 3553(a) factors. See id. We “must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance,” and
the fact that we might find “a different sentence appropriate is
insufficient to justify reversal of the district court.” Id.
We first conclude that Fisher’s above-Guidelines
sentence is procedurally reasonable. * The district court
properly calculated Fisher’s Guidelines range (and Fisher does
not contend otherwise), treated the range as advisory, and
adequately explained the selected sentence. The court
specifically explained that Fisher’s above-Guidelines sentence
was warranted because the offense indicated involvement in
significant drug-trafficking activity, Fisher had an extensive
criminal record, and Fisher’s prior experience with the criminal
justice system lacked the desired deterrent effect. In
addition, the court considered that the total offense level was
inadequate to reflect Fisher’s criminal history. Further, the
court explicitly addressed Fisher’s arguments, noting that
counsel’s arguments had persuaded it to impose a sentence lower
than the sentence advocated by the Government. While the
district court did not specifically address Fisher’s argument
*
The advisory Guidelines range was seventy to eighty-seven
months.
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regarding unwarranted sentencing disparities, the court did
state that it took into account all the sentencing factors.
Because the district court clearly considered Fisher’s
individual circumstances, we conclude that Fisher’s sentence is
procedurally reasonable.
We also hold that Fisher’s sentence is substantively
reasonable, considering the totality of the circumstances,
including the extent of the variance. Although Fisher’s
sentence is nearly three years above the high-end of the
advisory Guidelines range, the district court did not abuse its
discretion in determining that such a deviation was justified by
the § 3553(a) factors, including Fisher’s criminal history, the
need to protect the public, and the need to provide adequate
deterrence. Thus, we conclude that Fisher’s 120-month sentence
is reasonable.
Accordingly, we affirm the district court’s judgment.
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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