United States v. McDougald ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4483
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENN BARRY MCDOUGALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:08-cr-00092-D-1)
Submitted: July 14, 2010 Decided: August 6, 2010
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Banumathi
Rangarajan, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glenn Barry McDougald pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924
(2006), and was sentenced as an armed career criminal to a term
of 324 months of imprisonment. McDougald argues on appeal that
his sentence is unreasonable because the district court’s four-
level departure above the Sentencing Guidelines range pursuant
to U.S. Sentencing Guidelines Manual § 4A1.3 (2008) was
unwarranted. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.
After determining whether the district court properly calculated
the defendant’s advisory guideline range, the appellate court
considers whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). Finally, the appeals court reviews the substantive
reasonableness of the sentence, “taking into account the
totality of the circumstances, including the extent of any
variation from the Guidelines range.” Gall, 552 U.S. at 51.
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When reviewing a departure, we consider “whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). Under USSG § 4A1.3(a)(1), “[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, an upward departure may be
warranted.” Additionally, upward departures from the highest
criminal history category, VI, are specifically contemplated by
the guidelines. Commentary to USSG § 4A1.3, p.s., provides:
“In the case of an egregious, serious criminal record in which
even the guideline range for Criminal History Category VI is not
adequate to reflect the seriousness of the defendant’s criminal
history, a departure above the guideline range for a defendant
with Criminal History Category VI may be warranted.” USSG
§ 4A1.3, comment. (n.2(B)). Furthermore, commentary to the
armed career criminal guideline reflects that an upward
departure pursuant to USSG § 4A1.3, p.s., will be appropriate in
some cases when the defendant is sentenced as an armed career
criminal. See USSG § 4B1.4, comment. (back’d.) (“In some cases,
the criminal history category may not adequately reflect the
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defendant’s criminal history.”); see also United States v.
McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (rejecting argument
that an upward departure is contemplated only where armed career
criminals have a criminal history category IV or V).
Here, the district court’s decision to depart upwardly
was reasonable. The district court noted that McDougald had
committed thirty-one prior felonies and eight misdemeanors;
highlighted McDougald’s multitude of unscored offenses; and
repeatedly remarked on McDougald’s staggering propensity to
commit serious offenses and his unwillingness to conform to the
law. In fact, the court noted McDougald continued to engage in
illegal conduct while incarcerated and on probation. McDougald
had four times the number of predicate crimes necessary for an
armed career criminal sentence. The record therefore supports
the court’s conclusion that McDougald’s armed career criminal
designation failed to adequately reflect both the seriousness of
his criminal history and his likelihood of recidivism.
In addition, we conclude the extent of the district
court’s departure was reasonable. In determining the extent of
a departure under USSG § 4A1.3, the district court must use an
incremental approach. See USSG § 4A1.3(a)(4)(A); McNeill, 598
F.3d at 166; United States v. Dalton, 477 F.3d 195, 199 (4th
Cir. 2007). The incremental approach requires the district
court to refer first to the next higher category and explain why
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it fails to reflect the seriousness of the defendant’s record
before considering a higher category. See United States v.
Rusher, 966 F.2d 868, 884 (4th Cir. 1992). However, a
sentencing judge is not required “to move only one level, or to
explain its rejection of each and every intervening level.”
Dalton, 477 F.3d at 199 (internal quotations omitted). “And
while a court should indicate its reasons for departing upward
under section 4A1.3, it need not . . . go through a ritualistic
exercise in which it mechanically discusses each criminal
history category or offense level it rejects en route to the
category or offense level that it selects.” Id. (internal
quotations and brackets omitted).
With respect to the degree of departure, the court
employed the methodology required by USSG § 4A1.3, p.s., for
crafting an upward departure when even criminal history category
VI is insufficient. Having found McDougald’s total offense
level of thirty was inadequate, the district court “mov[ed]
incrementally down the sentencing table to the next higher
offense level in Criminal History Category VI until it [found] a
guideline range appropriate to the case.” USSG
§ 4A1.3(a)(4)(B), p.s. The district court specifically found
that offense levels thirty-one through thirty-three were not
adequate to reflect the seriousness of the defendant’s criminal
history or the likelihood that he will commit future crimes,
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including violent crimes. The court also properly rejected
McDougald’s argument that an upward departure effectively denied
McDougald’s acceptance of responsibility, noting that the upward
departure was about his criminal history and his likelihood of
recidivism.
We conclude the district court’s decision to depart
under § 4A1.3 was factually supported and that the resulting
sentence was reasonable. Moreover, the court adequately
explained its reasons for the departure. We therefore affirm
McDougald’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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