United States v. Ishmael Kelly , 523 F. App'x 990 ( 2013 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4590
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ISHMAEL SEBASTIAN KELLY,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   Louise W. Flanagan,
    District Judge. (5:11-cr-00166-FL-1)
    Submitted:   April 29, 2013                   Decided:   May 2, 2013
    Before MOTZ, GREGORY, and KEENAN, 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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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:
    Ishmael      Sebastian       Kelly         appeals        the     thirty-month
    sentence      imposed     following       his      guilty       plea    to    possession      of
    firearms and ammunition by a convicted felon, in violation of 
    18 U.S.C. §§ 922
    (g)(1), 924 (2006).                     On appeal, Kelly argues that
    the     district         court’s     upward          departure           resulted       in     a
    substantively unreasonable sentence.                        We reject this argument
    and affirm.
    We review any criminal sentence, “whether inside, just
    outside,    or      significantly        outside      the       Guidelines      range,”       for
    reasonableness,           “under      a        deferential             abuse-of-discretion
    standard.”       United States v. King, 
    673 F.3d 274
    , 283 (4th Cir.),
    cert. denied, 
    133 S. Ct. 216
     (2012); see Gall v. United States,
    
    552 U.S. 38
    , 46, 51 (2007).                When the district court imposes a
    departure      or     variance      sentence,         “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
    States   v.    Hernandez-Villanueva,               
    473 F.3d 118
    ,      123   (4th      Cir.
    2007).      The     district     court     “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
    2
    (4th Cir.) (quoting Rita v. United States, 
    551 U.S. 338
    , 356
    (2007))    (alteration     omitted),      cert.       denied,    
    131 S. Ct. 2946
    (2011).
    Where, as here, the defendant does not challenge the
    procedural reasonableness of his sentence, we review only the
    substantive reasonableness of the sentence, applying the abuse-
    of-discretion standard.          Gall, 
    552 U.S. at 51
    ; United States v.
    Lynn, 
    592 F.3d 572
    , 575 (4th Cir. 2010).                        In doing so, this
    court     assesses     whether     the     district       court    “abused            [its]
    discretion    in     determining     that       the    [18   U.S.C.]        §    3553(a)
    [(2006)]     factors    supported        [the    sentence]       and   justified          a
    substantial deviation from the Guidelines range.”                           Gall, 
    552 U.S. at 56
    .        We must “take into account the totality of the
    circumstances, including the extent of [the] variance from the
    Guidelines range.”        
    Id. at 51
    .            A more significant “departure
    should be supported by a more significant justification.”                               
    Id. at 50
    .
    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.”
    U.S.    Sentencing     Guidelines   Manual       § 4A1.3(a)(1),        p.s.      (2011);
    see United States v. Whorley, 
    550 F.3d 326
    , 341 (4th Cir. 2008)
    3
    (nothing that an under-representative criminal history category
    is an encouraged basis for departure).                            To determine whether a
    departure    sentence          is    appropriate           in    such    circumstances,         the
    Guidelines     state       a     court       may       consider,        inter      alia,      prior
    sentences not used in the criminal history calculation.                                        USSG
    § 4A1.3(a)(2).
    The district court emphasized Kelly’s unscored state
    felon-in-possession            conviction          in   upwardly         departing.           Kelly
    argues that the court’s departure to Criminal History Category
    IV   exaggerated       the          importance        of     this       unscored       conviction
    because, had it been scored, it would only have resulted in his
    placement    in     Criminal          History         Category        III.       However,       the
    district     court     did       not       rely       exclusively        on     this    unscored
    conviction to support the upward departure, but also considered
    other unscored convictions, the fact that the unscored state
    felon-in-possession conviction involved conduct similar to his
    current    offense,     Kelly’s           history       of      other    offenses      involving
    firearms,     the    danger          he     posed       to      the     community,      and     his
    recidivism.        The court also acknowledged Kelly’s arguments in
    mitigation    of     his       sentence.           We      conclude      that    the    district
    court’s decision to depart from the Guidelines was permissible
    and that its justification for the extent of its departure were
    sufficiently compelling.                  See United States v. McNeill, 
    598 F.3d
                                            4
    161, 166-67 (4th Cir. 2010) (affirming upward departure under
    § 4A1.3).
    Accordingly,      we   hold       the   sentence    is   substantively
    reasonable and affirm the district court’s criminal 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
    5