United States v. George Midgette

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4432
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE HENRY MIDGETTE, a/k/a George Henry Midgette, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:13-cr-00040-D-1)
Submitted: February 24, 2015 Decided: March 6, 2015
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Lawrence J. Cameron, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Henry Midgette pled guilty, pursuant to a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court
upwardly departed from Midgette’s advisory Sentencing Guidelines
range, pursuant to U.S. Sentencing Guidelines Manual
§ 4A1.3(a)(1), p.s. (2013), and sentenced Midgette to 78 months’
imprisonment. On appeal, Midgette argues that his sentence is
substantively unreasonable. We affirm.
We review a sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). The same standard applies
whether the sentence is “inside, just outside, or significantly
outside the Guidelines range.” United States v. Rivera-Santana,
668 F.3d 95, 100-01 (4th Cir. 2012) (internal quotation marks
omitted). Because Midgette “does not claim that the district
court committed any procedural error,” our review “is limited
only to [the] substantive reasonableness” of Midgette’s sentence
in light of “the totality of the circumstances.” United
States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014) (internal
quotation marks omitted).
When reviewing a departure from the advisory Guidelines
range, we consider “whether the sentencing court acted
reasonably both with respect to its decision to impose such a
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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). In conducting this review,
however, we “defer to the trial court and can reverse a sentence
only if it is unreasonable, even if the sentence would not have
been [our] choice.” United States v. Evans, 526 F.3d 155, 160
(4th Cir. 2008).
Section 4A1.3(a)(1) authorizes an upward departure when
“reliable information indicates that the defendant’s criminal
history category substantially underrepresents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” USSG § 4A1.3(a)(1), p.s.;
see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
(noting that under-representative criminal history category is
“encouraged” basis for upward departure). To determine whether
an upward departure is appropriate under this section, a court
may consider, among other information, prior sentences not used
in the criminal history calculation. USSG § 4A1.3(a)(2), p.s.
Midgette first contends that his sentence is substantively
unreasonable because the majority of his unscored convictions
were misdemeanors, not violent felonies. We conclude that
Midgette’s extensive criminal history justified the court’s
decision to grant an upward departure. Although Midgette’s
unscored felony convictions are not violent, they are certainly
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serious. Moreover, Midgette’s host of misdemeanor convictions
demonstrate Midgette’s propensity for violence and his
disrespect for the law.
Midgette further submits that his conduct was not as
serious as the conduct of other hypothetical defendants who
could have received similar sentences. We find this argument
unpersuasive. Not only is possession of a firearm by a
convicted felon a serious offense, but also this is Midgette’s
sixth conviction for such an offense, supporting the district
court’s conclusion that Midgette is likely to reoffend.
Midgette also argues that the district court did not
adequately account for the positive changes that he made in his
life during the time he was not in custody between serving his
revocation sentence and being arrested for the current charge.
The record is clear that the district court considered the
positive trend Midgette’s life was taking but concluded that the
fact that Midgette was working and taking care of his family in
the 2 months prior to his arrest did not outweigh the almost 15
years he spent committing one crime after another. Moreover,
Midgette’s offensive comment toward the prosecutor at his
detention hearing certainly does not bolster his declaration
that he is a changed man. We conclude that this balancing of
factors by the district court was entirely appropriate and is
entitled to deference. See United States v. Jeffery, 631 F.3d
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669, 679 (4th Cir. 2011) (observing that “district courts have
extremely broad discretion when determining the weight to be
given each of the § 3553(a) factors”).
Accordingly, we conclude that Midgette’s sentence is
substantively reasonable, and 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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