United States v. Larry Steward , 571 F. App'x 260 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EARL STEWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00016-TDS-1)
Submitted: May 19, 2014 Decided: May 21, 2014
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Sean McGonigle,
Third Year Law Student, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Earl Steward pled guilty pursuant to a plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).
The district court sentenced Steward to fifty-seven months’
imprisonment, a sentence resulting from an upward variance from
his advisory Guidelines range of thirty-seven to forty-six
months’ imprisonment. On appeal, Steward challenges this
sentence. We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” for reasonableness under a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41, 51 (2007). This court first reviews for significant
procedural error, and, if the sentence is free from such error,
we then consider its 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
explain adequately the selected sentence. Id. Substantive
reasonableness is determined by considering the totality of the
circumstances, including the extent of any deviation from the
Guidelines range. Id. An upward variance is permitted where
justified by the § 3553(a) factors. See id. This court must
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give due deference to the district court’s determination that
the § 3553(a) factors justify the extent of a variance, and the
fact that this court might find a different sentence appropriate
is insufficient to justify reversal of the district court. Id.
We conclude after review of the record and the
parties’ briefs that Steward’s above-Guidelines sentence is
reasonable. The district court properly calculated Steward’s
Guidelines range, heard argument from counsel and allocution
from Steward, treated the Guidelines range as advisory,
considered relevant § 3553(a) factors, and adequately explained
the selected sentence. The court specifically explained that
Steward’s above-Guidelines sentence was warranted by multiple
§ 3553(a) factors, expressing particular concern about Steward’s
high likelihood of recidivism in light of the length and nature
of his criminal history. We also reject as without merit
Steward’s argument that the district court gave impermissible
weight to portions of his criminal history that were not
assigned criminal history points under the Guidelines.
The court properly considered the entirety of Steward’s criminal
history in imposing sentence, 18 U.S.C. § 3553(a)(1), and, in
assigning the greatest weight to concerns stemming from
Steward’s criminal history, did not abuse its discretion.
See United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir.
2012) (stating it was within district court’s discretion to
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accord more weight to a host of aggravating factors in
defendant’s case and decide that the sentence imposed would
serve the § 3553 factors on the whole).
Steward’s sentence is also substantively reasonable,
considering the totality of the circumstances, including the
extent of the variance. Although the sentence is eleven months
above the high end of the Guidelines range, the district court
did not abuse its discretion in determining that such a
deviation was justified by the § 3553(a) factors, including
Steward’s criminal history and the need for the sentence to
protect the public, to deter Steward, and to promote respect for
the law. See United States v. Diosdado-Star, 630 F.3d 359,
366-67 (4th Cir. 2011) (affirming substantive reasonableness of
variance sentence six years greater than Guidelines range
because it was based on the district court’s examination of
relevant § 3553(a) factors); United States v. McNeill, 598 F.3d
161, 167 (4th Cir. 2010) (affirming the district court’s upward
departure based on, among other factors, the seriousness of the
offense, McNeill’s extensive criminal history, lack of work
history, and the need to deter McNeill from future crimes).
While Steward argues that the fifty-seven-month term
is greater than necessary to achieve the purposes of sentencing
in his case, we reject this argument because it essentially asks
this court to substitute its judgment for that of the district
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court. While this court may have weighed the § 3553(a) factors
differently had it imposed sentence in the first instance, we
defer to the district court’s decision that a fifty-seven-month
sentence achieved the purposes of sentencing in Steward’s case.
See Gall, 552 U.S. at 51 (explaining that appellate courts “must
give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify” the sentence imposed);
United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011)
(“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”).
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
this court and argument would not aid the decisional process.
AFFIRMED
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