United States v. Locklear

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4941
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES RONALD LOCKLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-05-78-F)
Submitted: June 14, 2006 Decided: July 10, 2006
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, 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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Ronald Locklear appeals from his fifty-one-month
sentence imposed pursuant to his guilty plea to escape, 18 U.S.C.
§ 751(a) (2000). On appeal, Locklear asserts that the district
court erred by sentencing him as a career offender and by departing
upward because his criminal history was underrepresented by the
calculated guideline range. We affirm.
Locklear first contends that his offense was not a crime
of violence and that he consequently should not have been sentenced
as a career offender. See United States Sentencing Guidelines
Manual § 4B1.1(a)(2). The guidelines define “crime of violence” as
either a listed felony or a felony that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” USSG § 4B1.2(a). In assessing whether a particular
offense satisfies the “otherwise” clause, a court confines its
factual inquiry to the facts charged in the indictment. If the
circumstances are not clear from the indictment, the court
considers whether that crime “in the abstract” involves conduct
that presents a serious potential risk of physical injury to
another. See United States v. Martin, 215 F.3d 470, 472 (4th Cir.
2000).
Here, Locklear’s indictment provided no specifics on his
escape, which is not a listed felony under USSG § 4B1.2. However,
in United States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996), we
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held that attempted felony escape “‘in the abstract,’ involves
conduct that presents a serious potential risk of physical injury
to another.” Therefore, regardless of the specific facts of his
case, Locklear’s escape was a crime of violence, and he was, thus,
properly treated as a career offender.
Locklear next contends that the district court erred in
departing upward based on his criminal record. Specifically, he
argues that the court failed to properly analyze its basis for
departure, failed to explain why the guidelines did not adequately
address Locklear’s criminal history, and departed to an
unreasonable degree.
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.” USSG § 4A1.3(a)(1), p.s.; 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). When a
sentencing court departs upward pursuant to USSG § 4A1.3, p.s., the
court must provide “a short clear written statement or a reasoned
statement from the bench to support its departure.” United
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States v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992). The court is
not required to use specific language, but it should clearly
identify the aggravating factors and its reasons for departure.
Id.Here, Locklear had more than double the number of
criminal history points required for placement in category VI.* In
addition, the court noted that Locklear’s lengthy record
demonstrated that he presented a risk of violence, that his record
was “bad” and “violent,” that his drug problem was at the bottom of
his continued burglaries, and that his future was “grim” unless he
could get over his drug issues. Moreover, the court made it clear
that it was departing because Locklear’s criminal history category
did not adequately reflect the seriousness of his criminal history.
Thus, while the court’s findings could have been more explicit, we
find that the court’s statement and reasoning were sufficient to
justify its upward departure.
Locklear also asserts that the departure was
unreasonable, because (1) his guideline range already accounted for
his serious criminal history and (2) the court failed to consider
the mitigating circumstances that his actual offense conduct was
innocuous, that he was set to be released within weeks of his
escape, and that he did not incur any convictions while absent from
*
Further, although Locklear 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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the facility. However, the district court was informed of the
circumstances, both by Locklear’s attorney and by the presentence
report, and the court discussed the circumstances of the crime and
Locklear’s background. In addition, while Locklear’s criminal
history resulted in a career offender enhancement, his criminal
history contained many more convictions than were necessary to
qualify as a career offender. Finally, the court departed just one
offense level, resulting in a sentence only five months longer than
the maximum sentence available without the departure.
Thus, we find that the departure was proper and
reasonable. Accordingly, we affirm Locklear’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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