United States v. Hinton , 355 F. App'x 695 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN D. HINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (4:06-cr-00088-D-1)
Submitted: September 24, 2009 Decided: December 4, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph E. Zeszotarski, Jr., POYNER SPRUILL, LLP, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman D. Hinton pled guilty to assault on a United
States Government employee, in violation of 18 U.S.C.
§ 111(a)(1), (b) (2006). The district court departed upward
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a), p.s. (2007), and sentenced Hinton to 132 months in
prison. On appeal, Hinton argues that the district court abused
its discretion by imposing a departure sentence and that his
sentence was unreasonable. Finding no merit, we affirm.
When determining a sentence, the district court must
calculate the appropriate advisory guidelines range and consider
it in conjunction with the factors set forth in 18 U.S.C.
§ 3553(a) (2006). Gall v. United States, 552 U.S. 38, , 128
S. Ct. 586, 596 (2007). Appellate review of a sentence,
“whether inside, just outside, or significantly outside the
[g]uidelines range,” is for abuse of discretion. Id. at 591.
If the district court determines that a sentence outside the
guidelines range is appropriate, the reviewing court “should
first look to whether a departure is appropriate based on the
Guidelines Manual or relevant case law.” United States v.
Moreland, 437 F.3d 424, 432 (4th Cir. 2006).
A district court may depart upward from the guidelines
range under USSG § 4A1.3(a), p.s., when “the defendant’s
criminal history category substantially under-represents the
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seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” USSG
§ 4A1.3(a)(1), p.s. “In determining whether an upward departure
from Criminal History Category VI is warranted, the court should
consider that the nature of the prior offenses rather than
simply their number is often more indicative of the seriousness
of the defendant’s criminal record.” USSG § 4A1.3, p.s., cmt.
n.2(B).
Here, the record supports the district court’s
conclusion that Hinton’s criminal history category failed to
adequately reflect the seriousness of his criminal history and
the likelihood of his recidivism. Hinton had an extensive
history of violent felonies, multiple unscored convictions not
included in calculating his criminal history category, a lengthy
history of lenient sentences followed by recidivism, and an
“abysmal” performance while on probation. Thus, the district
court did not err in imposing a departure sentence.
We also find that the sentence imposed by the district
court was both procedurally and substantively reasonable. The
district court followed the necessary procedural steps in
sentencing Hinton, including properly calculating and
considering the applicable guidelines range, using the
guidelines to fashion an appropriate departure sentence,
performing an individualized assessment of the § 3553(a) factors
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to the facts of the case, and stating in open court the reasons
for the sentence. See United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009). Further, the sentence was substantively
reasonable under the totality of the circumstances. Despite
Hinton’s contentions, the district court took into account
Hinton’s mental health and the nature and characteristics of the
offense in fashioning a sentence. The court articulated the
relevant factors that warranted the departure sentence,
including: Hinton’s extraordinary criminal history and past
lenient treatment, the seriousness of assaulting a Government
employee in the federal courthouse, the need to deter Hinton and
others from committing similar crimes, the need to protect the
public in light of Hinton’s likely recidivism, and the need for
an appropriate sentence for rehabilitation and treatment for his
cognitive limitations and mental illness.
We conclude that the district court did not abuse its
discretion in imposing the 132-month sentence. We therefore
affirm the district court’s 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
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