United States v. Kevin Slade , 464 F. App'x 94 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MYELL SLADE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (4:08-cr-00003-FL-1)
Submitted: January 20, 2012 Decided: February 6, 2012
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Myell Slade pled guilty without a plea agreement
to one count of conspiracy to distribute and to possess with the
intent to distribute fifty grams or more of cocaine base and
five kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846 (2006). The district court sentenced Slade to 293 months’
imprisonment, a sentence resulting from the court granting an
upward departure under U.S. Sentencing Guidelines Manual
(“USSG”) § 4A1.3(a), p.s., from his advisory Guidelines range of
210 to 262 months’ imprisonment. 1 On appeal, Slade challenges
this sentence, arguing that it is unreasonable because the
district court failed to specify in writing the reasons why it
imposed the upward departure. Slade also challenges both the
reasonableness of the court’s decision to depart above his
advisory Guidelines range and the reasonableness of the extent
of the departure. We affirm.
As we have explained, “no matter what provides the
basis for a deviation from the Guidelines range[,] we review the
resulting sentence only for reasonableness.” United States v.
Evans, 526 F.3d 155, 164 (4th Cir. 2008). In doing so, we apply
1
We previously vacated the district court’s imposition of a
365-month sentence and remanded for resentencing. United
States v. Slade, 631 F.3d 185, 192 (4th Cir.), cert. denied,
131 S. Ct. 2943 (2011).
2
an abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). In assessing a sentencing court’s
decision to depart from a defendant’s Guidelines range, 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. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). We will find a sentence to be unreasonable
if the sentencing court “provides an inadequate statement of
reasons or relies on improper factors in imposing a sentence
outside the properly calculated advisory sentencing range.” Id.Slade first argues that his sentence is unreasonable
because the district court failed to specify in writing the
reasons why it imposed the upward departure, in accordance with
USSG § 4A1.3(c)(1), p.s. We conclude, however, that any error
by the district court in this respect is harmless. The district
court orally explained its considered reasons for imposing the
upward departure and nothing in the record indicates that, but
for the court’s failure to reduce these reasons to writing,
Slade would have received a lesser sentence. Accordingly, this
contention affords Slade no relief.
Next, Slade argues that a sentence within the
pre-departure Guidelines range would have been sufficient to
achieve the purposes of sentencing and the court thus abused its
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discretion in departing upwardly from that range. We conclude
that the district court acted reasonably in imposing the upward
departure. The court utilized USSG § 4A1.3(a), p.s., to
increase Slade’s criminal history from Category V to VI.
Pursuant to this provision, 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.
To determine whether a departure is appropriate in such
circumstances, the court may consider, among other factors,
prior sentences not used in computing the defendant’s criminal
history category and prior, similar adult criminal conduct not
resulting in conviction. USSG § 4A1.3(a)(2)(A), (E), p.s.
Slade’s multiple unscored convictions not included in his
criminal history calculation and lengthy criminal history
replete with recidivism qualify as bases for departure under
this provision. The district court further concluded that
Slade’s conduct warranted a Category VI criminal history. We
discern no abuse of discretion in that conclusion.
Slade also argues that the district court abused its
discretion in finding that such an extensive departure was
warranted in this case. However, we conclude after review of
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the record that the court’s sentencing decision is reasonable in
light of Slade’s long history of recidivism, which reflects his
disrespect for the law, and the need for the sentence to protect
the public and to deter Slade. The court’s consideration of
relevant 18 U.S.C. § 3553(a) (2006) factors 2 and articulation of
its reasons for departing from the Guidelines range support our
decision to defer to the district court’s determination as to
the extent of the departure. See United States v.
Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir.), cert. denied,
131 S. Ct. 2946 (2011) (affirming substantive reasonableness of
variance sentence six years greater than the Guidelines range
because it was based on the district court’s thoughtful
examination of relevant § 3553(a) factors).
Accordingly, we affirm the district court’s amended
judgment. 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
2
Slade contends that the district court failed to
“acknowledge” and “properly consider” his conduct and behavior
in prison. We conclude that this contention is without merit.
The record makes clear that the district court fully considered
Slade’s conduct and behavior in prison in deciding whether to
impose a departure.
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