United States v. Venable , 281 F. App'x 204 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBERT LEVI VENABLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00068-REP)
Submitted: April 16, 2008 Decided: June 16, 2008
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,
Frances H. Pratt, Assistant Federal Public Defenders, Richmond,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Matthew C. Ackley, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herbert Levi Venable appeals from his 120-month sentence
imposed pursuant to his guilty plea to distribution of crack
cocaine. On appeal, Venable contends that the district court
applied the incorrect procedural framework in determining his
sentence and that his sentence was greater than necessary to serve
the goals of sentencing. Finding no abuse of discretion, we
affirm.
I.
At his sentencing hearing, Venable moved for a downward
departure under U.S. Sentencing Guidelines Manual § 4A1.3 (2006),
arguing that his career offender designation over-represented his
criminal history. Venable’s qualifying convictions were for
burglary while armed with a deadly weapon with the intent to commit
murder and malicious wounding in 1980 and possession of heroin with
the intent to distribute as an accommodation in 2000. While the
burglary offense was more than twenty years old at the time of
Venable’s current offense, his parole/probation for that offense
was revoked four times, resulting in a cycle of release and
re-incarceration continuing from 1982 until 1994, when Venable was
finally discharged from supervision. Venable’s criminal history
also included six misdemeanor assault or assault and battery
convictions and numerous misdemeanor convictions for writing bad
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checks, petit larceny, trespassing, possession of marijuana,
obstruction of justice, making a false report to a police officer,
contempt of court, and driving on a suspended license. Venable’s
criminal history points placed him in criminal history category VI,
even absent the career offender designation. The court denied the
motion to depart, finding that Venable’s criminal history was not
atypical for career offenders and did not significantly over-
represent his criminal history or the likelihood he would commit
other crimes.
Venable also requested a variance sentence of sixty months.
The district court considered the small quantity of drugs at issue
(.118 grams of crack cocaine), the seriousness of the offense,
Venable’s “intermediate” role in the offense, and the age of his
first career offender predicate conviction, and found that a
variance would be appropriate. However, the court found that
Venable’s history was lengthy and included many serious
misdemeanors. The court also noted that Venable had demonstrated
an inability to follow the law or take advantage of prior leniency.
The court then imposed a variance sentence of 120 months.
II.
Venable first asserts that his sentence was procedurally
erroneous because (1) when considering his motion for a departure
the court incorrectly considered whether Venable’s criminal history
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category over-represented his criminal history rather than whether
the career offender designation over-represented his criminal
history and (2) the court failed to sufficiently explain how such
a long period of incarceration furthered any of the sentencing
goals better than a sixty-month sentence would have.
First, under USSG § 4B1.3(b)(1), a departure is only
available if “the defendant’s criminal history category
substantially over-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit
other crimes.” Career offender status is only mentioned as a
limitation; specifically, career offenders are only eligible for a
one-category reduction. USSG § 4A1.3(b)(3). Under the applicable
guideline, career offender status does not require any different
analysis by the district court.
Thus, the court properly considered both whether
Venable’s criminal history was so minor that it rendered his an
“unusual” career offender case and whether category six overstated
his criminal history. See United States v. Spencer, 25 F.3d 1105,
1113 (D.C. Cir. 1994) (holding that court must determine whether
career offender’s history is “unusual” compared to other career
offenders prior to departing under § 4A1.3); United States v.
Stockton, 349 F.3d 755, 764 (4th Cir. 2003) (§ 4A1.3 departure
requires analysis of whether criminal history category exaggerates
criminal record even when defendant is a career offender).
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Accordingly, there was no procedural error in the court’s analysis
of whether to depart under § 4A1.3.
Turning to Venable’s second claim of procedural error,
Venable asserts that the district court was required to explicitly
state why a 120-month term of imprisonment served the goals of
sentencing better than the 60-month term urged by Venable.
However, there is no such procedural requirement. The district
court’s explanation of the sentence imposed should provide some
indication that it considered the 18 U.S.C.A. § 3553 (West 2000 &
Supp. 2007) factors and the potentially meritorious arguments
raised by the parties at sentencing. United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert. denied, 127
S. Ct. 3044 (2007).
Here, the court clearly considered both the statutory
factors and the arguments of the parties. The suggestion of a
specific sentence by the defendant does not place any further
requirements on the district court. Accordingly, there was no
procedural error.
III.
Finally, Venable contends that the district court’s
sentence was greater than necessary to comply with the statutory
sentencing goals set forth in § 3553. Specifically, Venable
asserts that such a lengthy sentence for an offense involving less
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than an eighth of a gram of crack cocaine does not promote respect
for the law. In addition, Venable states that a shorter sentence
would still have had a strong deterrent effect given the short
sentences Venable had served in the past. Finally, Venable
contends that he is not the “prototypical” career offender and,
thus, his sentence created an unwarranted disparity.
We will affirm a sentence so long as it is within the
statutorily prescribed range and is reasonable. United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Reasonableness
review focuses on whether the district court abused its discretion.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, the district court must (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the § 3553(a) factors in light of the
arguments presented by the parties; (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. See Gall v. United States, 128 S. Ct. 586, 596-97
(2007). Even if the reviewing court would have reached a different
sentencing result on its own, this fact alone is insufficient to
justify reversal of the district court. Pauley, 511 F.3d at 474.
Here, the district court properly calculated the
guideline range, determined that a sentence outside that range
would serve the § 3553(a) factors, and explained its reasons for
choosing the sentence that it did. The district court considered
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the small amount of drugs involved in the offense as well as the
age of one of Venable’s prior convictions in imposing a variance
sentence below the Guideline range. Moreover, Venable presents
only conclusory arguments that his sentence created a disparity
with other career offenders with similar prior convictions. Based
on the record as a whole, the district court properly considered
all the factors and arguments in arriving at its sentence. We
conclude that there was no abuse of discretion.
Accordingly, we affirm Venable’s 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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