United States v. James Acklin ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4390
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES ARTHUR ACKLIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cr-00025-D-1)
Submitted: February 21, 2014 Decided: February 27, 2014
Before GREGORY, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
James A. Acklin appeals from the forty-six-month
sentence imposed after he pleaded guilty to knowingly failing to
register as required by the Sex Offender Registration and
Notification Act (SORNA), in violation of 18 U.S.C. § 2250
(2012). Acklin argues that his sentence is procedurally and
substantively unreasonable. Specifically, Acklin contends that
the district court erred in departing upward under U.S.
Sentencing Guidelines Manual (USSG) § 4A1.3 (2012) without
acknowledging that departures above criminal history VI are
disfavored and in imposing a sentence that relied too heavily on
the number of his criminal convictions instead of their
severity. Acklin also argues that the court erred in
calculating his term of supervised release. We affirm the term
of imprisonment portion of the sentence, vacate the portion of
the judgment imposing supervised release, and remand for further
consideration of the supervised release term.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46 (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 reviewing any
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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).
“[A] major departure should be supported by a more significant
justification than a minor one.” Gall, 552 U.S. at 50.
The court first reviews for significant procedural
error, and if the sentence is free from such error, it then
considers substantive reasonableness. Id. at 51. Procedural
error includes improperly calculating the Guidelines range,
treating the Guidelines range as mandatory, failing to consider
the 18 U.S.C. § 3553(a) (2012) factors, and failing to
adequately explain the selected sentence. Id. To adequately
explain the sentence, the district court must make an
“individualized assessment” by applying the relevant § 3553(a)
factors to the case’s specific circumstances. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). The individualized
assessment need not be elaborate or lengthy, but it must be
adequate to allow meaningful appellate review. Id. at 330.
Substantive reasonableness is determined by considering the
totality of the circumstances, and if the sentence is within the
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properly-calculated Guidelines range, this court applies a
presumption of reasonableness. United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
Pursuant to USSG § 4A1.3, a district court may depart
upward from an applicable Guidelines range if “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.
Upward departures from the highest criminal history category are
appropriate “[i]n the case of an egregious, serious criminal
record in which even the guideline range for Criminal History
Category VI is not adequate to reflect the seriousness of the
defendant’s criminal history.” USSG § 4A1.3, p.s., cmt. n.2(b).
Here, the district court explained at length its
reasons for the departure. It emphasized Acklin’s extensive
criminal history, encompassing sixty-two convictions, several of
which were serious offenses, including sexual assault, burglary
and conspiracy to obtain property by false pretenses. The court
observed that Acklin’s criminal history was “about as robust as
one can find in terms of just the volume and the length,” thus
concluding, contrary to Acklin’s argument, that Acklin’s
criminal history was extraordinary. The court imposed a
sentence nine months above the Guidelines range after following
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our guidance on formulating the departure. We conclude that the
sentence was procedurally reasonable.
Turning to the substantive reasonableness of the
sentence, Acklin argues that the extent of the district court’s
departure substantially overstated the seriousness of his
criminal record. He argues that the court neglected to consider
the degree to which his admittedly extensive criminal record has
diminished in the last two decades. Further, Acklin contends
that although he had fifty-five unscored convictions, the
majority were for misdemeanor and traffic offenses, and
therefore did not merit an upward departure of approximately
thirty percent. In sum, Acklin contends that the district court
placed too much weight on the number of convictions instead of
their severity. See United States v. Cash, 983 F.2d 558 (4th
Cir. 1992) (“[T]he sentencing court should consider not only the
number of prior offenses committed by a defendant but also their
seriousness.”). Our review of the sentencing transcript
convinces us, however, that the district court considered not
just the number of Acklin’s lifetime convictions but their
individual severity and cumulative effect.
The court departed upward from 30 to 37 months to a
range of 46 to 57 months and imposed a sentence of 46 months.
In imposing the sentence, the court “considered all the
arguments” of counsel, Acklin’s statement, and the 18 U.S.C.
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§ 3553(a) factors. The court also noted that it considered
Acklin’s explanation at the guilty plea hearing as to the
circumstances surrounding his failure to register and took into
account Acklin’s prior compliance with registration in
Connecticut. The court balanced Acklin’s circumstances and the
age of his many convictions with its concern whether Acklin’s
criminal behaviors would come to an end. The court concluded
that there was a need to deter and incapacitate Acklin, and to
“provide just punishment, to take into account the seriousness
of [Acklin’s] history and characteristics, the good and the
bad.” Under the circumstances, we conclude that the district
court’s decision to depart under § 4A1.3 and its extent of
departure was factually supported and that the resulting
sentence was substantively reasonable.
Finally, Acklin argues that the district court erred
in calculating the Guidelines range for his supervised release
term and in imposing a ten-year term. The Government responds
that we should remand on the supervised release issue only.
“[W]hoever is required to register under [SORNA and] . . .
knowingly fails to register or update a registration as required
by [SORNA,] shall be imprisoned for up to 10 years, fined, or be
sentenced to both a fine and imprisonment.” 18 U.S.C.
§ 2250(a)(3). For offenders under 18 U.S.C. § 2250, the term of
supervised release “is any term of years not less than 5, or
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life.” 18 U.S.C. § 3583(k) (2012). Under USSG § 5D1.2(b)(2),
the minimum supervised release term is five years, but if the
sentence is a sex offense, “the guideline range for a term of
supervised release is five years to life.”
The Defendant argues, and the Government agrees, that
the failure to register offense is not a sex offense; therefore,
the supervised release Guidelines range does not include a
maximum of life, and does not create a range of five years to
life as is the case with sex offenses. The PSR indicated a
supervised release Guidelines range of five years to life based
on USSG § 5D1.2(b)(2) and 18 U.S.C. § 3583(k). The district
court imposed a ten-year term without discussion. Subsequent to
the sentencing hearing, the Department of Justice (DOJ) issued
guidance and established the Government’s position on supervised
release terms for defendants convicted of SORNA offenses.
According to the Government, the memo states (1) that a
conviction for failure to register as a sex offender under
§ 2250(a) does not qualify as a “sex offense” under USSG
§ 5D1.2(b); and (2) the advisory supervised release range for a
§ 2250(a) conviction is a single point: the statutory minimum of
five years.
Because the district court entered judgment before the
DOJ memo issued, the case may benefit from the district court
reconsidering the supervised release portion of the sentence.
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Accordingly, we affirm the term of imprisonment, vacate the
portion of the sentence imposing supervised release, and remand
for reconsideration in light of the DOJ’s recently issued
position regarding the advisory supervised release range. 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 IN PART,
VACATED IN PART,
AND REMANDED
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