United States v. Timothy Devine , 554 F. App'x 208 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4227
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY ALEXANDER DEVINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:07-cr-00010-D-1; 5:10-cv-00091-D)
Submitted: January 31, 2014 Decided: February 11, 2014
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Alexander Devine pleaded guilty to possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2012). * The district court sentenced Devine
to 120 months of imprisonment. The court upwardly departed from
a Sentencing Guidelines range of 51 to 63 months to a range of
110 to 137 months under U.S. Sentencing Guidelines Manual
§ 4A1.3(a)(1) (2012), based on a combination of factors,
including “past convictions for serious and violent offenses,
numerous probation violations, disciplinary actions, gang
involvement including [new] gang involvement while in federal
custody, and receipt of lenient treatment for prior felonious
conduct.” In addition, the court stated that even if the upward
departure was erroneous, it would impose the same sentence as a
variance under the factors set forth in 18 U.S.C. § 3553(a)
(2012). Devine now appeals his sentence. For the reasons set
forth below, we affirm.
*
Devine was originally sentenced pursuant to an upward
variance and upward departure to a term of 262 months. In 2012,
Devine filed a motion to vacate his sentence under 28 U.S.C.
§ 2255 (2012) based on United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). The district court granted the motion to
vacate the sentence because, after Simmons, Devine no longer had
three qualifying felonies under 18 U.S.C. § 924(e); however, he
still had two qualifying convictions under 18 U.S.C. § 922(g).
Therefore, the new maximum sentence was 120 months.
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We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 46 (2007). The court first reviews for significant
procedural error, and if the sentence is free from such error,
it then considers substantive reasonableness. Id. at 51.
Procedural error includes improperly calculating the Sentencing
Guidelines range, treating the Guidelines range as mandatory,
failing to consider the 18 U.S.C. § 3553(a) factors, and failing
to adequately explain the selected sentence. Id. To adequately
explain the sentence, the district court must make an
“individualized assessment” by applying the relevant § 3553(a)
factors to the case’s specific circumstances. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). The individualized
assessment need not be elaborate or lengthy, but it must be
adequate to allow meaningful appellate review. Id. at 330.
“Substantive reasonableness examines the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Devine challenges his sentence on two grounds: (1) the
district court procedurally erred in upwardly departing because
his criminal history category did not underrepresent the
seriousness of his criminal history, and the court failed to
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adequately explain incrementally why it chose the criminal
history category and offense level that it did; and (2) the
sentence is substantively unreasonable. The Government argues
that the court should affirm the sentence because the upward
departure is proper under the Guidelines and, alternatively, the
variance sentence is reasonable.
In United States v. Evans, 526 F.3d 155, 165 (4th Cir.
2008), we explained that “[w]hen . . . a district court offers
two or more independent rationales for its [sentencing]
deviation, an appellate court cannot hold the sentence
unreasonable if the appellate court finds fault with just one of
these rationales.” Affirming the sentence, we stated:
[t]he record provides abundant support for the
district court’s conclusion that the § 3553(a) factors
support the sentence. Accordingly, even assuming the
district court erred in applying the Guideline[s]
departure provisions, Evans’ sentence, which is
well-justified by § 3553(a) factors, is reasonable.
Id.; see also United States v. Rivera-Santana, 668 F.3d 95, 104
(4th Cir.), cert. denied, 133 S. Ct. 274 (2012) (even if the
district court erroneously departed upward from the advisory
guideline range, the asserted departure error was harmless
“because the upward variance based on the § 3553(a) factors
justified the sentence imposed”); United States v. Grubbs, 585
F.3d 793, 804 (4th Cir. 2009) (holding that even if the district
court erred in its departure analysis, “the resulting sentence
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is procedurally reasonable because the district court adequately
explained its sentence on alternative grounds supporting a
variance sentence, by reference to the . . . § 3553(a)
factors”). The same reasoning applies here. This court need
not address whether the district court properly departed under
§ 4A1.3(a)(1) because the district court explicitly stated that
it would apply the same sentence as an alternative variance
sentence considering the § 3553(a) factors, and the variance
sentence is reasonable.
Devine has an extensive criminal history, which the
district court discussed at length when considering the upward
departure and § 3553(a) factors. The court noted that Devine’s
criminal history was serious and violent and included, among
other things, two armed robberies that he was allowed to plead
down on, numerous probation violations, gang activity and
continuing gang involvement while in prison, an abysmal prison
record in both state and federal custody, and “receipt of
repeated lenient treatment for past felonious conduct.” The
court credited Devine with having matured and made
rehabilitative efforts since his first sentencing, but found
that Devine’s criminal history and persistent participation in
gangs demonstrated that a longer sentence was needed to
“incapacitate, deter, [and] provide just punishment.”
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In addition to claiming that his sentence was
excessively long, Devine claims that the district court
substantively erred by impermissibly considering his continued
gang participation in prison and erroneously finding “a need to
deter and continued need to incapacitate.” These arguments are
unavailing because both of these considerations by the court
speak directly to three § 3553(a) factors. See 18 U.S.C.
§ 3553(a)(1) (stating that court must consider the history and
characteristics of the defendant); 18 U.S.C. § 3553(a)(2)(B)
(stating that court must consider the need to deter the
defendant); 18 U.S.C. § 3553(a)(2)(C) (stating that court must
consider the need to protect the public from further crimes of
the defendant).
The district court has broad discretion in sentencing
decisions, see Gall, 552 U.S. at 51, and based on the court’s
careful consideration of the § 3553(a) factors, we cannot say
that the alternative variance sentence is unreasonable.
Therefore, even if the court was incorrect in upwardly departing
under § 4A1.3(a)(1), that error would be harmless because the
variance sentence based on the § 3553(a) factors is reasonable
and thus “justifie[s] the sentence imposed.” Rivera-Santana,
668 F.3d at 104.
We therefore affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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