United States v. Baham , 258 F. App'x 521 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4514
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENDRICK BAHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:06-cr-00001-F)
Submitted: November 14, 2007 Decided: December 11, 2007
Before WILLIAMS, Chief Judge, KING, Circuit Judge, and WILKINS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendrick Baham appeals the district court’s decision to
impose a upward departure from the advisory sentencing guidelines
based on the finding that his past criminal conduct was not
reflected in his criminal history category. Finding no error, we
affirm.
Baham was convicted of escaping from an institutional
facility in which he was lawfully confined for a felony conviction.
At his initial sentencing, the district court imposed a sentence
greater than suggested by the advisory sentencing guidelines. This
court found that the district court erred by not first considering
an upward departure under U.S. Sentencing Guidelines Manual § 4A1.3
(2005). We further found the record failed to show that the
district court considered a sentence within a lower range of
imprisonment or why such a sentence was inappropriate. Because the
court did not consider the appropriateness of an upward departure
under the guidelines, the sentence was vacated and remanded for
resentencing. United States v. Baham, No. 06-4443, 2007 WL 313298
(4th Cir. Jan. 30, 2007) (unpublished).
This court will affirm the sentence imposed by the
district court as long as it is within the statutorily prescribed
range and reasonable. “Reasonableness review involves both
procedural and substantive components. A sentence may be
procedurally unreasonable, for example, if the district court
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provides an inadequate statement of reasons or fails to make a
necessary factual finding. A sentence may be substantively
unreasonable if the court relies on an improper factor or rejects
policies articulated by Congress or the Sentencing Commission.”
United States v. Moreland, 437 F.3d 424, 434 (4th Cir.) (internal
citations omitted), cert. denied, 126 S. Ct. 2054 (2006).
At resentencing, the district court followed proper
sentencing procedures by: (1) calculating the guideline range;
(2) determining whether a sentence within that range serves the
factors under § 3553(a); (3) implementing mandatory statutory
limitations; and (4) explaining its reasons for selecting the
sentence, especially a sentence outside the advisory range. United
States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126
S. Ct. 2309 (2006). After determining that a sentence within the
guidelines was not appropriate because of Baham’s prior criminal
conduct, the court considered whether a departure is appropriate
based on the guidelines or relevant case law. Moreland, 437 F.3d
at 432. A district court may depart upward from the guidelines
range under USSG § 4A1.3 when “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). 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,
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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). Commentary to the guideline states that, “[i]n
determining whether an upward departure from Criminal History
Category VI is warranted, the court should consider that the nature
of the prior offenses rather than simply their number is often more
indicative of the seriousness of the defendant’s criminal record.”
USSG § 4A1.3, comment. (n.2(B)). The guidelines specifically
provide that the court may consider “[p]rior similar adult criminal
conduct not resulting a criminal conviction.” USSG §
4A1.3(a)(2)(E). The court may also rely on facts underlying prior
arrests. United States v. Dixon, 318 F.3d 585, 591 (4th Cir.
2003). As part of this process, “[t]he district court must
articulate the reasons for the sentence imposed, particularly
explaining any departure or variance from the guideline range.”
Moreland, 437 F.3d at 432. This court must ask “whether the
sentence was selected pursuant to a reasoned process in accordance
with the law, in which the court did not give excessive weight to
any relevant factor, and which effected a fair and just result in
light of the relevant facts and law.” Green, 436 F.3d at 457.
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We find the district court’s upward departure was
reasonable. Given the circumstances, the court adequately
explained its reasons for not ordering a sentence within a lower
range of imprisonment.
Accordingly, we affirm Baham’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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