United States v. King

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4855
CARL D. KING, a/k/a Carl Devince
King,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4935
CARL DEVINCE KING,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge;
James C. Fox, Senior District Judge.
(CR-96-96-F, CR-00-29-BO)
Submitted: May 22, 2002
Decided: June 21, 2002
Before MOTZ and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. KING
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Jennifer May-Parker, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In No. 01-4855, Carl Devince King appeals the eighty-seven-
month concurrent sentences imposed after he pled guilty to bank rob-
bery, in violation of 18 U.S.C.A. § 2113(a) (West 2000). He alleges
that the district court abused its discretion in departing upward one
criminal history category based upon the likelihood of recidivism. In
No. 01-4935, King appeals the thirty-six-month consecutive sentence
imposed by the district court after it revoked his supervised release
following his release from prison on an earlier armed bank robbery
conviction. We affirm.
King first contends that the district court abused its discretion in
departing upward based upon the likelihood of recidivism because
criminal history category IV fully accounted for his prior criminal
conduct and the likelihood he would commit future crimes. Here, the
district court decided to depart upward from criminal history category
IV to V after reviewing the presentence report and discussing King’s
criminal history at two sentencing hearings. The court found that the
likelihood of recidivism and future threat to society were great based
upon the fact that the sentence King served on his earlier armed bank
robbery conviction was not sufficient to deter him from committing
similar crimes, that he committed the instant offenses only four
UNITED STATES v. KING 3
months after his release, and that he was on supervised release when
he committed the bank robberies and an attempted robbery of an
insurance company.
Generally, a district court’s decision to depart is reviewed for an
abuse of discretion. Koon v. United States, 518 U.S. 81, 91, 98-99
(1996). A district court may depart on the basis of an encouraged fac-
tor that is not adequately accounted for under the applicable guideline
but that decision is not accorded deference. Id. at 95-96, 99-100; see
also United States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996).
The sentencing guidelines expressly encourage departure when a
defendant’s "criminal history category does not adequately reflect the
seriousness of [his] past criminal conduct or the likelihood that [he]
will commit other crimes." U.S. Sentencing Guidelines Manual
§ 4A1.3, p.s. (2000).
King correctly notes that the probation officer assessed two crimi-
nal history points under USSG § 4A1.1(d) because he was on super-
vised release when he committed the bank robberies and assessed an
additional point under USSG § 4A1.1(e) because those robberies
occurred less than two years after his release from prison on a 1996
armed bank robbery conviction. He therefore argues that the likeli-
hood of recidivism already was taken into account in the guidelines
calculation of his criminal history score. We find, however, that,
because King committed two bank robberies and an attempted rob-
bery shortly after he began his term of supervised release for the ear-
lier armed bank robbery conviction, his case falls outside the
heartland of cases covered by USSG § 4A1.1(d) and (e). United
States v. King, 150 F.3d 644, 650-51 (7th Cir. 1998); see United
States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir. 1989) ("The
recidivist’s relapse into the same criminal behavior demonstrates his
lack of recognition of the gravity of his original wrong, entails greater
culpability for the offense with which he is currently charged, and
suggests an increased likelihood that the offense will be repeated yet
again.").
King also contends that the court failed to provide adequate reasons
for its decision to depart from criminal history category IV to V. Our
review of the record leads us to conclude that the district court pro-
vided adequate reasons for its departure decision. See United States
4 UNITED STATES v. KING
v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992). Accordingly, we find
no abuse of discretion in the district court’s decision to depart upward
one criminal history category based upon King’s likelihood of recidi-
vism.
Turning to the appeal from the thirty-six-month sentence King
received after the district court revoked his supervised release, King
contends that his sentence was plainly unreasonable in light of the
district court’s upward departure in sentencing him on the bank rob-
beries that were also a violation of his supervised release conditions.
He also asserts that the sentence was unreasonable because it twice
exceeded the advisory guideline range provided in Chapter 7 of the
sentencing guidelines. We have thoroughly reviewed the record on
appeal and conclude that the district court did not abuse its discretion
in sentencing King to a thirty-six-month term of imprisonment to be
served consecutively to the sentence he received for the substantive
offenses. See United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)
(providing standard of review); USSG § 5G1.3, comment. (n.6).
Accordingly, we affirm the judgments of the district court. We dis-
pense 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