Document Info

DocketNumber: 10-4139

Judges: Niemeyer, Motz, Agee

Filed Date: 4/13/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4139
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    HAKIM RASHEED HANIFAH, a/k/a Bloody Hock,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.  James C. Dever III,
    District Judge. (7:09-cr-00061-D-1)
    Submitted:   March 17, 2011                 Decided:   April 13, 2011
    Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, Raleigh, North Carolina, for
    Appellant.     George E.B. Holding, United States Attorney,
    Jennifer P. May-Parker, Tobin W. Lathan, Assistant United States
    Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Hakim      Rasheed        Hanifah         pled     guilty          to    one     count    of
    possession of a firearm by a convicted felon, in violation of 18
    U.S.C.       §§    922(g)(1),             924    (2006).            He    appeals           the    district
    court’s decision to impose an upward departure.                                            He claims the
    departure          was      excessive           because       it    was       based,        in    part,    on
    conduct       that          was     already       incorporated                into        the    Sentencing
    Guidelines.            Finding no error, we affirm.
    An       upward        departure         may     be     warranted             under     U.S.
    Sentencing Guidelines Manual § 4A1.3 if the sentencing court
    finds       that       a    defendant’s          criminal          history      category           does    not
    represent the defendant’s criminal history or the likelihood of
    recidivism.            United States v. Myers, 
    589 F.3d 117
    , 125 (4th Cir.
    2009).        The Guidelines contemplate a situation in which even
    Criminal       History            Category       VI    is     insufficient            to        reflect    the
    seriousness of the defendant’s criminal conduct,                                           in which case
    the court may incrementally increase the offense level.                                                    See
    USSG    § 4A1.3(a)(4)(B).                   The       Guidelines          further          note    that     an
    upward departure may be warranted in the case of a defendant who
    has    an    extensive            record     of       prior      assaults,       but        has    received
    lenient       treatment             by     the    courts.               See     USSG        § 4A1.3       cmt.
    background.            A court’s decision to impose an upward departure is
    reviewed for abuse of discretion.                             
    Myers, 589 F.3d at 127
    .                     This
    court must decide whether the district court acted reasonably
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    with respect to the decision to impose an upward departure and
    the    extent    of   the    departure.            United      States      v.    Hernandez-
    Villanueva, 
    473 F.3d 118
    , 123 (4th Cir. 2008).
    We conclude that the district court properly explained
    its reasons for applying an upward departure and find that the
    decision   to     impose     an    upward    departure         was    reasonable.         The
    court properly took notice of the violent nature of Hanifah’s
    past criminal conduct, the leniency he has received from the
    courts,    his    admitted        gang   membership,        and      the    fact   that   he
    committed an assault while detained awaiting sentencing.                                  We
    further    conclude         that     the     extent       of      the      departure      was
    reasonable, given the seriousness of the offense, his history of
    assaultive       conduct,    the     fact    that    there      was     nothing     in    the
    record to suggest that Hanifah was going to stop his violent
    behavior anytime soon and the need to deter him and others from
    engaging in similar conduct.
    Accordingly, we affirm the 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
    3