United States v. Moore , 289 F. App'x 618 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY LEE MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-00980-HMH-1)
Submitted: July 31, 2008 Decided: August 7, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. William Walter Wilkins, III, United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Lee Moore pled guilty to two counts of use of
unauthorized access devices with intent to defraud and one count of
unauthorized use of the identification of another in a scheme to
defraud. At sentencing, the district court departed upward from
the advisory Guidelines pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 4A1.3 (2006) because Moore’s criminal history
category under-represented the seriousness of his past criminal
conduct and the likelihood that he would recidivate. The district
court sentenced him to a total term of eighty-seven months
imprisonment. Moore’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but raising for the court’s
consideration whether the district court erred by imposing an
upward departure based on Moore’s criminal history. Moore has been
informed of his right to file a pro se supplemental brief, but has
not done so. After reviewing the record, we affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
appellate review of a district court’s imposition of a sentence is
for abuse of discretion. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). The appellate court must first ensure that the district
court committed no procedural error, such as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
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Guidelines as mandatory, failing to consider the 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2008) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence—including an explanation for any deviation from
the Guideline range.” Gall, 128 S. Ct. at 597.
A district court may depart upward based on the
inadequacy of the defendant’s criminal history if “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 . . . .” USSG § 4A1.3(a)(1); United
States v. Dixon, 318 F.3d 585, 588 (4th Cir. 2003). The guideline
further directs that “[i]n a case in which the court determines
that the extent and nature of the defendant's criminal history,
taken together, are sufficient to warrant an upward departure from
Criminal History Category VI, the court should structure the
departure by moving incrementally down the sentencing table to the
next higher offense level in Criminal History Category VI until it
finds a guideline range appropriate to the case.” USSG § 4A1.3
(a)(4)(B).
Our review of the record shows that the district court
properly determined that Moore’s criminal history category under-
represented his criminal history. The court then properly moved
incrementally down the sentencing table to the next higher offense
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level and chose a sentence from within that range of imprisonment.
We find no abuse of discretion in the district court’s
determination of Moore’s sentence and therefore affirm. Gall, 128
S. Ct. at 597.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Moore’s conviction and sentence. This court requires that
counsel inform her client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew her
motion for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. 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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