United States v. Roger Arthur, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4435
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER JUNIOR ARTHUR, JR., a/k/a Roger Arthur, Jr., a/k/a
Busy, a/k/a Biz,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00055-BO-1)
Submitted: September 10, 2013 Decided: September 27, 2013
Before GREGORY, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Sullivan, Jr., SULLIVAN & WAGONER LAW FIRM,
Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
Roger Junior Arthur, Jr., pleaded guilty, pursuant to
a written plea agreement, to a two-count indictment charging him
with knowingly and intentionally conspiring with others to
possess with intent to distribute a quantity of heroin, in
violation of 21 U.S.C. § 846, and knowingly and intentionally
possessing with intent to distribute a quantity of heroin, and
aiding and abetting another, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Prior to sentencing, the
government filed a motion for an upward departure under § 4A1.3.
Arthur received a sentence of forty-one months, which was above
the Sentencing Guidelines range. On appeal, Arthur argues that
the district court departed upward and that it procedurally
erred in doing so. He also contends his total sentence is
unreasonable. Finding no error, we affirm.
Arthur argues that the district court committed
procedural error when it departed upward of the Guidelines
range, pursuant to U.S. Sentencing Guidelines Manual § 4A1.3(a).
Arthur also argues that the forty-one-month sentence is
unreasonable because it creates a sentencing disparity; it is
greater than necessary to achieve the factors set forth in 18
U.S.C. § 3553(a); and the court failed to consider mitigating
circumstances. The government contends that the court did not
in fact impose an upward departure, but instead varied upward
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outside the Guidelines range. The government also argues that
the district court imposed a reasonable sentence.
The “permissible factors justifying traditional
departures differ from--and are more limited than--the factors a
[district] court may look to in order to justify a . . .
variance.” United States v. Hampton, 441 F.3d 284, 288 n.2 (4th
Cir. 2006). As departures are thus “subject to different
requirements than variances,” United States v. Floyd, 499 F.3d
308, 311 (3d Cir. 2007), it is important for district courts to
“articulate whether a sentence is a departure or a variance from
an advisory Guidelines range.” United States v. Brown, 578 F.3d
221, 226 (3d Cir. 2009) (internal quotations omitted). However,
“the method of deviation from the Guidelines range--whether by a
departure or by varying--is irrelevant so long as at least one
rationale is justified and reasonable.” United States v.
Diosdado-Star, 630 F.3d 359, 365-66 (4th Cir. 2011).
At the sentencing hearing, the court stated that
“based on these facts and [§] 3553(a), I’ll vary the sentence
upwardly.” J.A. 40 (emphasis added). The court determined that
offense level 18 with criminal history category III would result
in a satisfactory sentence and the range “would be an
appropriate variance.” Id. (emphasis added).
This is further underscored by the written statement
of reasons entered by the court. The court did not mark the box
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to indicate that the court departed from the advisory Guidelines
range; it marked the box that it imposed a sentence outside the
advisory range. See J.A. 71. The only slight indication to the
contrary is that the court also marked the box for the sentence
being imposed pursuant to a “government motion for a sentence
outside of the advisory guideline system” not addressed in a
plea agreement. J.A. 72. The government’s motion was for an
upward departure under USSG § 4A1.3; however, during the
sentencing hearing, the court did not specifically grant the
motion or state that it was departing upward. In the section
for reasons that the sentence is outside the advisory Guidelines
range, the court marked as reasons due to “the nature and
circumstances of the offense and the history and characteristics
of the defendant pursuant to 18 U.S.C. § 3553(a)(1)” and “to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense (18
U.S.C. § 3553(a)(2)(A)).” J.A. 72. The factors were
appropriate to consider for a variance, but not an upward
departure under USSG § 4A1.3. Accordingly, Arthur’s arguments
challenging the procedural reasonableness of his sentence as the
result of an erroneous upward departure are moot and are
rejected.
As to the overall reasonableness of the sentence as an
upward variance, we review a sentence for reasonableness,
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applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007). The court first reviews for
significant procedural error, and if the sentence is free from
such error, we then consider substantive reasonableness. Id. at
51. Procedural error includes improperly calculating the
Guidelines range, treating the Guidelines range as mandatory,
failing to consider the § 3553(a) factors, and failing to
adequately explain 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
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 that Arthur’s above-Guidelines sentence is
reasonable. The district court properly calculated Arthur’s
Guidelines range, treated the range as advisory, and adequately
explained the selected sentence. The court specifically
explained that Arthur’s above-Guidelines sentence was warranted
by the facts presented by the government as well as multiple
§ 3553(a) factors. J.A. 40. The court was particularly
concerned with Arthur’s high likelihood of recidivism and the
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significant nature of the heroin trade in Wilmington and
Arthur’s role in it. Accordingly, Arthur’s sentence is
procedurally reasonable.
Arthur’s sentence is also substantively reasonable,
considering the totality of the circumstances, including the
extent of the variance. Though Arthur’s sentence is
approximately one-third higher than the high end of his
Guidelines range, the district court did not abuse its
discretion in determining that such a deviation was justified by
the § 3553(a) factors, including Arthur’s criminal history, the
need to protect the public, and the need to provide adequate
deterrence. We therefore conclude that Arthur’s forty-one-month
sentence is reasonable.
Accordingly, we affirm the judgment. We deny the
government’s motion to dismiss the appeal. 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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