United States v. Oswald Miles, Jr. , 482 F. App'x 769 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSWALD MILES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00382-FL-1)
Submitted: April 5, 2012 Decided: May 15, 2012
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
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Unpublished opinions are not binding precedent in this circuit.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:
Oswald Miles, Jr., pled guilty to possession of stolen
ammunition in violation of 18 U.S.C. § 922(j) (2006). The
district court departed above the Guidelines range pursuant to
U.S. Sentencing Guidelines Manual §§ 4A1.3, p.s., 5K2.21, p.s.
(Inadequate Criminal History Category; Dismissed and Uncharged
Conduct) (2010), and imposed a sentence of forty-one months’
imprisonment. Miles appeals his sentence, arguing that the
district court procedurally erred in several respects in making
the departure. We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard, which includes both procedural and
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). The same standard applies whether the sentence is
“inside, just outside, or significantly outside the Guidelines
range.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). 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
(4th Cir.) (citing Rita v. United States, 551 U.S. 338, 356
(2007)), cert. denied, 131 S. Ct. 2946 (2011).
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Guidelines § 4A1.3(a)(1) provides that, “[i]f 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, an upward departure may be
warranted.” Miles contends that the district court committed
procedural error in departing based only on his prior
convictions, set out in the presentence report, without
considering any other “reliable information” concerning the
seriousness of his criminal record. His position is not
supported by the language of § 4A1.3 or its commentary. Miles’
prior convictions constituted reliable evidence because they
were “established by . . . interaction with the legal system[.]”
United States v. Weisser, 417 F.3d 336, 351 (2d Cir. 2005)
(holding that defendant’s alleged sexual relationship with
teenage boy as evidenced by internet chats was not “reliable
information” for § 4A1.3 departure).
The district court found that Miles’ multiple
convictions, beginning at a young age, indicated a propensity to
further criminal conduct which was not reflected in his criminal
history category. Moreover, the court found that other admitted
criminal conduct was not accounted for, specifically, his crimes
against the two underlying victims of his current offense. We
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conclude that the court identified a sufficiently reliable basis
for the departure.
Next, Miles claims that the district court failed to
follow correctly the incremental approach set out in § 4A1.3 and
case law for departures above criminal history category VI, see
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007),
because the court moved from offense level 11 to level 13
without addressing the adequacy of level 12. However, in Dalton
we held that “[s]ection 4A1.3’s mandate to depart incrementally
does not, of course, require a sentencing judge to move only one
level, or to explain its rejection of each and every intervening
level.” Id. (internal quotation marks and citation omitted).
By finding that offense level 13 produced a sentencing range
that allowed a sentence that the court decided was sufficient,
but not greater than necessary to account for the seriousness of
Miles’ offense and the likelihood that he would commit future
crimes, the court implicitly rejected offense level 12 as
inadequate to comply with the purposes of § 3553(a).
Finally, Miles suggests that the district court failed
to explain adequately its reasons for the extent of the
departure. However, the sentencing judge need only “set forth
enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Carter, 564 F.3d at 328
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(quoting Rita, 551 U.S. at 356). We are satisfied that the
district court’s explanation for the sentence did not constitute
procedural error.
We therefore affirm the sentence. 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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