United States v. Charles Deese , 456 F. App'x 298 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-5258
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CHARLES RAY DEESE,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. James C. Fox, Senior
    District Judge. (7:10-cr-00064-F-1)
    Submitted:   November 10, 2011            Decided:   December 5, 2011
    Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.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, Thomas B. Murphy, Assistant United States
    Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Charles Ray Deese pled guilty to possessing firearms
    and ammunition as a convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1)        (2006),     and   possessing     with        intent    to    distribute
    more than five grams of cocaine base and a quantity of cocaine
    powder, in violation of 
    21 U.S.C. § 841
    (a)(1) (2006).                            Deese was
    sentenced to 293 months’ imprisonment.                        In this appeal, Deese
    argues his sentence is unreasonable.                We affirm.
    We   review      sentences    for    reasonableness,             applying    an
    abuse-of-discretion standard.               Gall v. United States, 
    552 U.S. 38
    , 51 (2007); United States v. Diosdado-Star, 
    630 F.3d 359
    , 363
    (4th Cir.), cert. denied, 
    131 S. Ct. 2946
     (2011).                              This review
    requires consideration of both the procedural and substantive
    reasonableness        of   a    sentence.         Gall,    
    552 U.S. at 51
    .      In
    determining procedural reasonableness, we consider whether the
    district      court    properly      calculated         the     defendant’s       advisory
    Guidelines     range,       considered      the    
    18 U.S.C. § 3553
    (a)       (2006)
    factors, analyzed any arguments presented by the parties, and
    sufficiently explained the selected sentence.                       Gall, 
    552 U.S. at 51
    .    “Regardless of whether the district court imposes an above,
    below,   or    within-Guidelines           sentence,       it    must     place    on     the
    record   an    individualized         assessment        based     on     the    particular
    facts of the case before it.”               United States v. Carter, 
    564 F.3d 325
    ,   330    (4th Cir. 2009)         (internal      quotation         marks     omitted).
    2
    Once we confirm that a sentence is procedurally reasonable, we
    can   consider     the     substantive          reasonableness             of     the    sentence,
    “tak[ing]       into    account     the        totality         of    the       circumstances.”
    Gall, 
    552 U.S. at 51
    .
    Deese        argues     that        the       district         court        imposed    a
    procedurally unreasonable sentence because it did not address
    his argument for a sentence at the bottom of the Guidelines
    range.      We    have    reviewed        the    sentencing           transcript         with     the
    above standards in mind and conclude that the district court
    adequately       responded         to      Deese’s          arguments,            provided         an
    individualized         assessment,      and      explained           the    sentence         imposed
    with sufficient detail to allow for meaningful appellate review.
    See Rita v. United States, 
    551 U.S. 338
    , 356-59 (2009).                                        Thus,
    Deese is not entitled to relief on this claim.
    Deese        also     contends          his    sentence          is    unreasonable
    because    the    district        court      classified         him    as       both     a   career
    offender and an armed career criminal and then also upwardly
    departed     under       U.S.     Sentencing           Guidelines            Manual       (“USSG”)
    § 4A1.3(a)       (2010),     based      on      the       underrepresentation                of   his
    criminal     history.           When    reviewing           a    departure,           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.        McNeill,         
    598 F.3d 161
    ,      166
    3
    (4th Cir. 2010)        (internal         quotation       marks     omitted),         aff’d    on
    other grounds, 
    131 S. Ct. 2218
     (2011).                           Upward departures from
    the   highest     criminal        history       category,        VI,    are       specifically
    contemplated by the Guidelines.                      USSG § 4A1.3(a)(4)(B) & cmt.
    n.2(B).      Furthermore,          an     upward       departure       pursuant       to    USSG
    § 4A1.3,    p.s.,      will       be    appropriate        in    some       cases    when    the
    defendant is sentenced as an armed career criminal.                                   See USSG
    § 4B1.4    cmt.    background;           see    also    McNeill,        
    598 F.3d at 166
    (rejecting argument that upward departure is contemplated only
    where armed career criminals have criminal history category of
    IV or V).
    We     conclude        that    the      district      court’s         decision    to
    depart upwardly was reasonable.                      Deese’s criminal history was
    extensive,       exceeding        the      criteria        for    a     criminal       history
    category    of    VI   by     a   factor       of   two,    and       the    district      court
    properly     applied        the         incremental        approach         set     forth     in
    § 4A1.3(a)(4)(B).           Giving due deference to the district court’s
    decision that the record on a whole justified the extent of the
    deviation, we conclude that the extent of the departure is a
    reasonable        exercise         of     the       district       court’s          sentencing
    discretion.       See Gall, 
    552 U.S. at 51
    ; Diosdado-Star, 
    630 F.3d at 366-67
    .
    Accordingly, we affirm the judgment of the district
    court.     We dispense with oral argument because the facts and
    4
    legal    contentions   are   adequately   presented    in   the   materials
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
    5
    

Document Info

Docket Number: 10-5258

Citation Numbers: 456 F. App'x 298

Judges: Niemeyer, Duncan, Hamilton

Filed Date: 12/5/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024