United States v. Pearson , 310 F. App'x 571 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4106
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE JAMES PEARSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00053-F-1)
Submitted: December 16, 2008 Decided: December 19, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Slade C. Trabucco, SULLIVAN, TRABUCCO & WAGONER, LLP,
Wilmington, North Carolina, for Appellant. George E.B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie James Pearson appeals from his 200-month
sentence entered pursuant to his guilty plea to possession with
intent to distribute heroin. Pearson asserts that the district
court erred by departing upward based on its finding that
Pearson’s criminal history category inadequately reflected his
actual criminal history. In addition, Pearson contends that he
received inadequate notice of the possible upward departure. We
affirm.
A defendant’s criminal history is an encouraged factor
for an upward departure. A court may depart upward from the
guideline range “[i]f 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.” U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s.
(2007); see also USSG § 4A1.3(a)(4)(B) (when upwardly departing
from Category VI, the court should move incrementally down the
sentencing table to the next highest offense level, until it
finds an appropriate guideline range).
Pearson asserts that the district court erred because
(1) the Guidelines already took into account his past
convictions and (2) many of his convictions were old. However,
Pearson had 52 convictions, 27 of which did not result in
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criminal history points. * In addition, while many of Pearson’s
convictions were old, Pearson’s criminal record did not show a
significant break in criminal activity. During the five years
prior to his arrest on the instant offense, Pearson had been
convicted of assault with a deadly weapon (serving over a year
in prison), assault to inflict serious injury, and possession of
cocaine and marijuana. We find that the record supports the
court’s upward departure and that the court’s decision was
reasonable.
Next, Pearson alleges that he had insufficient notice
of the court’s intent to depart. However, the notice
requirement is satisfied if the presentence report recommends a
departure on a particular ground. United States v. Bellamy, 264
F.3d 448, 455 (4th Cir. 2001). Here, the presentence report
noted that the court could consider a departure based upon the
“severity of the defendant’s past criminal history and the
likelihood that he will commit future crimes,” and Pearson did
not object to the lack of notice. Thus, we conclude that
Pearson’s notice was sufficient.
Accordingly, we affirm Pearson’s sentence. We
dispense with oral argument because the facts and legal
*
Further, although Pearson was found to be a career
offender, that status did not affect his criminal history
category, because he was already in category VI.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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