United States v. Larry Currie , 702 F. App'x 144 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4604
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY CURRIE,
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. (5:10-cr-00175-D-1)
Submitted: June 20, 2017 Decided: July 27, 2017
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, First Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United
States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Kristine
L. Fritz, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Currie appeals the 120-month sentence imposed upon resentencing
following his guilty plea to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g) (2012). On appeal, Currie asserts that the district court’s upward
departure under U.S. Sentencing Guidelines Manual § 4A1.3(a) (2015) produced a
substantively unreasonable sentence. For the reasons that follow, we affirm.
We review a criminal sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 40–41 (2007). A sentence must be
“sufficient, but not greater than necessary,” to satisfy the statutory purposes of
sentencing. See 18 U.S.C. § 3553(a) (2012). Our review for substantive reasonableness
“examin[es] 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).” See United States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir. 2014)
(internal quotation marks omitted).
In reviewing a sentence outside the Guidelines range, we must “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. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). If a court’s deviation from the Guidelines range “is a substantial one, . . . we
must more carefully scrutinize the reasoning offered by the district court in support of the
sentence. The farther the court diverges from the advisory guideline range, the more
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compelling the reasons for the divergence must be.” United States v. Hampton, 441 F.3d
284, 288 (4th Cir. 2006) (internal quotation marks omitted). However, we “must give
due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” United States v. Pauley, 511 F.3d 468, 473–74 (4th Cir.
2007) (internal quotation marks omitted). Ultimately, we “can reverse a sentence only if
it is unreasonable, even if the sentence would not have been the choice of the appellate
court.” United States v. Weon, 722 F.3d 583, 590 (4th Cir. 2013) (internal quotation
marks omitted).
A district court is permitted to depart upwardly from the Guidelines range based
on the inadequacy of a defendant’s criminal history category when “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.S.G. § 4A1.3(a)(1). In applying the departure provision, the
court “must move horizontally across successive criminal history categories up to
category VI, and, if category VI is inadequate, the court must then vertically traverse to
successively higher offense levels until it finds a guideline range appropriate to the case.”
United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); see U.S.S.G. § 4A1.3(a)(4).
The court “should move to successively higher categories only upon finding that the prior
category does not provide a sentence that adequately reflects the seriousness of the
defendant’s criminal conduct.” United States v. Dalton, 477 F.3d 195, 199 (4th Cir.
2007) (internal quotation marks omitted).
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Currie asserts that the district court imposed a sentence greater than necessary to
satisfy the statutory purposes of sentencing by departing upward to a criminal history
category of VI and then adding seven offense levels, producing a sentence nearly three
times the top of the applicable Guidelines range. Currie argues that the district court’s
departure failed to adequately account for the circumstances of his case, including his age
and poor health, his significant decline in criminal behavior over the last 10 years, his
generally positive institutional record in federal prison, and his acceptance of
responsibility.
We disagree. Initially, we observe that the district court acted well within its
discretion in concluding that a departure under U.S.S.G. § 4A1.3(a) was warranted.
Currie’s significant number of prior convictions spanned the course of his adult life and
included both multiple drug offenses and multiple instances of significant violence.
However, he received only seven criminal history points. Coupled with Currie’s
probation violations and dozens of institutional infractions, Currie’s criminal record
amply justified the court’s conclusion that Currie’s criminal history category of IV
substantially underrepresented the seriousness of his criminal history and likelihood of
reoffending.
Currie notes that most of his prior convictions were remote and that he has
demonstrated both a decrease in criminal behavior since 1990 and a decrease in violent
conduct since 2006. However, the vast majority of Currie’s adult life has been spent in
prison, undermining his argument that his reduction in criminal convictions during this
period is indicative of reduced criminality. Notably, Currie’s dozens of institutional
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infractions, including multiple offenses involving violence, during the period of his
lengthy state incarceration suggest little abatement in his antisocial and nonconforming
conduct. Further, the conduct underlying his most recent prior conviction and the instant
§ 922(g) offense tend to undermine his claim that he is now unlikely to commit violence.
Currie’s conduct during his federal incarceration, while improved, is not
unblemished, and the court expressed understandable concern for Currie’s recent
marijuana-related infractions. Currie claims that the district court placed too heavy an
emphasis on those infractions. However, the district court was permitted to determine
that those infractions, committed while Currie was in his late forties, undercut his
arguments regarding the inverse relation between age and recidivism and provided a
reason to question his retreat from crime. Although Currie also notes his acceptance of
responsibility, this argument rings hollow in light of his statements in allocution denying
involvement in his prior offenses and violence against women, which were flatly
contradicted by the record.
Currie further contends that, even if a departure was warranted, the district court
did not adequately explain its reasons for concluding that intervening offense levels
would not produce a sufficient Guidelines range. Even assuming, without deciding, that
the court’s explanation regarding each intervening level was inadequate, we conclude any
such error was harmless. See United States v. Martinovich, 810 F.3d 232, 243 (4th Cir.
2016) (recognizing that procedural sentencing error is harmless “if the resulting sentence
is not longer than that to which the defendant would otherwise be subject” (alterations
and internal quotation marks omitted)); United States v. Hargrove, 701 F.3d 156, 162–63
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(4th Cir. 2012) (recognizing our authority to affirm sentence despite procedural error
where record clearly reveals that court would have reached same result and sentence is
substantively reasonable). The district court made patently clear that it would impose the
same sentence as a variance sentence, even if it erred in its Guidelines calculations or
application of U.S.S.G. § 4A1.3(a). And although Currie identified nonfrivolous
mitigating factors in support of a lower sentence, see, e.g., United States v. Howard, 773
F.3d 519, 532–33 (4th Cir. 2014) (recognizing reduced culpability in youthful offenders
and inverse correlation between inmate’s age and risk of recidivism), we cannot
conclude, in view of the totality of the circumstances, that the district court acted
unreasonably in determining that those factors did not warrant a sentence below the
statutory maximum.
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 this court and argument would not aid the decisional process.
AFFIRMED
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