United States v. Tracey Thorpe ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACEY TARRELL THORPE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:11-cr-00093-BR-1)
Submitted: January 29, 2013 Decided: March 12, 2013
Before NIEMEYER, KEENAN, and DIAZ, 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Affirmed by unpublished per curiam opinion.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, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracey Tarrell Thorpe appeals the district court’s
judgment imposing an eighty-seven-month sentence following his
guilty plea to two counts of theft of government property, in
violation of 18 U.S.C. § 641 (2006), and one count of theft of
the personal property of another, in violation of 18 U.S.C.
§ 661 (2006). Thorpe argues that his sentence was procedurally
unreasonable because the district court based the length of his
sentence in part on his need for drug treatment, in violation of
Tapia v. United States, 131 S. Ct. 2382 (2011). Thorpe also
argues that his sentence was substantively unreasonable because
there was no significant justification for an upward departure
of more than four years from his Guidelines range. We affirm.
We review Thorpe’s sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 46, 51 (2007). We first review for “significant
procedural error[s],” including “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, . . . or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. To avoid
procedural error, the district court must make an
“individualized assessment,” wherein it applies the relevant
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§ 3553(a) factors to the specific facts of the defendant’s case.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Because Thorpe did not raise a Tapia objection in the
district court, our review is for plain error. See United
States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (applying
plain error review to challenge of sentence based on Tapia
raised for first time on appeal). In the sentencing context, an
error affects substantial rights only if there is a
nonspeculative basis to believe that the sentence the defendant
received was longer than the sentence he would have received but
for the error. See United States v. White, 405 F.3d 208, 223
(4th Cir. 2005); United States v. Hughes, 401 F.3d 540, 548 (4th
Cir. 2005).
In Tapia, the Supreme Court held that 18 U.S.C.
§ 3582(a) (2006) “precludes sentencing courts from imposing or
lengthening a prison term to promote an offender’s
rehabilitation”. 131 S. Ct. at 2391. Because the district
court here merely indicated at the sentencing hearing that
Thorpe would have the opportunity to enter a drug rehabilitation
program, we conclude that the district court did not impose a
sentence to promote rehabilitation. See id. at 2392 (“A court
commits no error by discussing the opportunities for
rehabilitation within prison or the benefits of specific
treatment or training programs.”). Even if the district court
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did commit plain error in light of Tapia, Thorpe fails to
establish that his substantial rights were affected because he
proffers only speculation, and no evidence, that he received a
longer sentence in promotion of his rehabilitation.
Thorpe also argues that his sentence was substantively
unreasonable. We review the substantive reasonableness of a
sentence for abuse of discretion, “tak[ing] into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Gall, 552 U.S. at 51. In
reviewing a variance, we must give due deference to the
sentencing court’s decision. United States v. Diosdado-Star,
630 F.3d 359, 366 (4th Cir. 2011). 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. Id. at 364 (internal
quotation marks omitted). While “a major departure should be
supported by a more significant justification than a minor
one[,] . . . a district court need not justify a sentence
outside the Guidelines range with a finding of extraordinary
circumstances.” Id. at 366 (internal quotation marks omitted).
The district court granted an upward departure after
considering arguments from both parties. Moreover, the district
court adequately explained its reasons for granting an upward
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departure, noting Thorpe’s extensive criminal history and high
likelihood of recidivism and citing various § 3553(a) factors to
justify the upward departure. Under the deference due to the
district court, we conclude that Thorpe’s eighty-seven-month
sentence is substantively reasonable.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument will not aid the decisional
process.
AFFIRMED
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