United States v. Calvin Brame, Jr. , 499 F. App'x 247 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4028
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN MORTIMER BRAME, JR., a/k/a C-Baby,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00285-D-1)
Submitted: November 16, 2012 Decided: December 13, 2012
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Calvin Mortimer Brame, Jr., pled guilty to one count
of conspiracy to distribute and possess with intent to
distribute more than fifty grams of cocaine base, in violation
of 21 U.S.C. § 846 (2006). The district court sentenced Brame to
120 months’ imprisonment. Brame appealed, and we remanded for
resentencing pursuant to the Fair Sentencing Act of 2010
(“FSA”), Pub. L. No. 111-220, 124 Stat. 2372. On remand, the
district court applied the FSA to Brame, imposed an upward
variance from the applicable advisory Guidelines range of
seventy to eighty-seven months’ imprisonment, and again
sentenced him to 120 months’ imprisonment. On appeal, Brame
challenges this sentence, arguing that it is substantively
unreasonable. 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
an abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). In assessing a sentencing court’s decision to
vary from a defendant’s Guidelines range, “we consider 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
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States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). We will find a sentence to be unreasonable “[i]f [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.Relying on Tapia v. United States, 131 S. Ct. 2382,
2393 (2011) (holding that a district court “may not impose or
lengthen a prison sentence to enable an offender to complete a
treatment program or otherwise to promote rehabilitation”),
Brame first asserts that the district court’s determination at
resentencing that the variance sentence was warranted, in part,
to provide him with an opportunity to receive training no longer
provides a valid reason for imposing an upward variance. Because
Brame did not raise a Tapia objection below, we review for plain
error only. Accord United States v. Hargrove, 625 F.3d 170, 184
(4th Cir. 2010) (applying plain error standard to “alleged error
that arose during the court’s statements explaining the basis
for the sentence it imposed”), cert. denied, 132 S. Ct. 292(2011). After review of the record, we find no basis for
concluding that the district court would have imposed a lower
prison term, but for its consideration of rehabilitation. See
United States v. White, 405 F.3d 208, 223 (4th Cir. 2005)
(explaining that, in the sentencing context, a plain error
affects substantial rights only if there is a nonspeculative
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basis to believe that the sentence the defendant received was
longer than the sentence he would have received but for the
error). Accordingly, we conclude that, because any Tapia error
in this case did not affect Brame’s substantial rights, the
district court did not plainly err in relying on this
consideration in imposing the variance sentence.
Brame next argues that the district court abused its
discretion in finding that such an extensive variance was
warranted in this case. However, we conclude after review of the
record that the court’s sentencing decision is reasonable in
light of Brame’s history of recidivism, which reflects his
disrespect for the law, and the need for the sentence to protect
the public and to deter Brame. The court’s consideration of the
relevant 18 U.S.C. § 3553(a) (2006) factors and articulation of
its reasons for varying from the Guidelines range support our
decision to defer to the district court’s determination as to
the extent of the variance. See United States v. Diosdado-Star,
630 F.3d 359, 366-67 (4th Cir.) (affirming substantive
reasonableness of variance sentence six years greater than
Guidelines range because sentence was based on the district
court’s examination of the § 3553(a) factors), cert. denied, 131
S. Ct. 2946 (2011); see also United States v. Angle, 598 F.3d
352, 359 (7th Cir. 2010) (“All that matters is that the sentence
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imposed be reasonable in relation to the ‘package’ of reasons
given by the court.”).
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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