United States v. Dowtin , 174 F. App'x 140 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4841
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KYMERLE DOWTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-05-20-H)
Submitted: February 28, 2006 Decided: March 16, 2006
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kymerle Dowtin appeals his forty-four month prison
sentence resulting from his conviction for possession of a firearm
after having been convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9) (2000).* Finding no
reversible error, we affirm.
Dowtin and his ex-girlfriend Daisy Melendez engaged in an
argument after Dowtin brought their son to Melendez’s house. When
Melendez refused to allow Dowtin to spend the night, Dowtin became
angry and hit her. Dowtin then pulled a gun out of his pocket,
told her he would shoot her, and then fired one shot into the air
before leaving. At sentencing, Dowtin did not contest that the
district court properly calculated a sentencing guideline range of
thirty to thirty-seven months’ imprisonment. The district court
then granted the Government’s motion for an upward departure under
U.S. Sentencing Guidelines Manual § 5K2.6 (2005). The district
court added two offense levels and found a guideline range of
thirty-seven to forty-six months. Dowtin received a sentence of
forty-four months’ imprisonment.
Dowtin claims that the district court erred when it
departed upward from the sentencing guideline range. A district
court may depart upward from the guideline range under USSG § 5K2.6
if a firearm was used or possessed. “The extent of the increase
*
Dowtin does not appeal his conviction.
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ordinarily should depend on the dangerousness of the weapon, the
manner it which it was used, and the extent to which its use
endangered others. The discharge of a firearm might warrant a
substantial increase.” USSG § 5K2.6. The district court granted
the upward departure because Dowtin “fired the possessed firearm in
the vicinity of a victim holding a child.”
Dowtin claims that his offense level under USSG § 2K2.1
encompassed his conduct in firing the gun through cross-referencing
to a minor assault under USSG § 2A2.3(a)(1). Minor assault under
USSG § 2A2.3(a)(1), however, does not take into consideration the
discharging of a firearm during an assault and speaks only to the
threatened use of a firearm. An upward departure under USSG
§ 5K2.6 was proper to address the fact that Dowtin’s conduct was
more aggravated than a minor assault.
Dowtin also claims that the amount of upward departure
was unreasonable. The extent of a departure must be reasonable
under the circumstances. 18 U.S.C. § 3742(f)(2) (2000); United
States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998). USSG § 5K2.6
explicitly states that the discharge of a firearm might warrant a
substantial increase. The extent of the district court’s departure
was reasonable when compared to other provisions in the guidelines
for enhancements based on the discharge of a firearm. This
conclusion is bolstered by the fact that the two level increase
resulted in a sentencing range of only nine months above the
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original guideline range, and an actual sentence only seven months
greater than Dowtin could have received absent the departure.
Thus, because the district court appropriately treated the
guidelines as advisory, calculated and considered the guideline
range, gave a reasonable justification for sentencing above the
guideline range, and weighed the relevant factors under 18 U.S.C.
§ 3553(a) (2000), we find that the sentence it imposed upon Dowtin
was reasonable.
Accordingly, we affirm the district court’s judgment. 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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