Filed: Jul. 21, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4928 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ENNETT BEALON, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, Chief District Judge. (7:08-cr-00038-FL-1) Submitted: May 6, 2009 Decided: July 21, 2009 Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4928 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ENNETT BEALON, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, Chief District Judge. (7:08-cr-00038-FL-1) Submitted: May 6, 2009 Decided: July 21, 2009 Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4928
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES ENNETT BEALON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (7:08-cr-00038-FL-1)
Submitted: May 6, 2009 Decided: July 21, 2009
Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Robert J. Higdon,
Jr., William M. Gilmore, Jennifer E. Wells, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Ennett Bealon, Jr., appeals his sentence of
288 months’ imprisonment for possession with intent to
distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2006). On appeal, Bealon contends that
the district court’s upward departure from the recommended
guidelines range was unreasonable, as the recommended guidelines
range adequately accounts for Bealon’s criminal history, and
that even if an upward departure was appropriate, Bealon’s 288
month sentence was unreasonable. We affirm.
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 128 S. Ct. 586, 597 (2007). Appellate
courts are charged with reviewing sentences for reasonableness,
evaluating both the procedural and substantive reasonableness of
a sentence. Id. at 594, 597.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 596-97. We then
determine whether the district court failed to consider the 18
U.S.C. § 3553(a) (2006) factors and any arguments presented by
the parties, treated the guidelines as mandatory, selected a
sentence based on “clearly erroneous facts,” or failed to
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sufficiently explain the selected sentence. Id. at 597; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally,
we review the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at
597).
A district court may depart upward from the guidelines
range under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a) (2007) when “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).
Commentary to the guideline states that, “[i]n determining
whether an upward departure from Criminal History Category VI is
warranted, the court should consider that the nature of the
prior offenses rather than simply their number is often more
indicative of the seriousness of the defendant’s criminal
record.” USSG § 4A1.3 cmt. n.2(B).
Here, Bealon does not challenge the procedural
reasonableness of the sentence — he does not allege that the
district court erred in its calculation of the guidelines,
failed to adequately explain its sentence, or failed to apply
the § 3553(a) factors. Instead, Bealon attacks the substantive
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reasonableness of the sentence. When reviewing substantive
reasonableness, we “may consider the ‘extent of the deviation’
[from the recommended guidelines range], but . . . ‘must give
due deference to the district court’s decision that the
§ 3553(a) factors, as a whole, justify the extent of the
variance.’” Pauley, 511 F.3d at 473-74 (quoting Gall, 128 S.
Ct. at 597). That we would have reached a different result in
the first instance is insufficient reason to reverse the
district court’s sentence. Id. at 474.
Upon reviewing the record, we conclude that the
district court did not abuse its discretion in sentencing Bealon
to 288 months’ imprisonment. Throughout the sentencing hearing,
the district court referenced Bealon’s lengthy criminal history.
The district court noted that it had never seen a criminal
history as extensive as Bealon’s, and characterized the history
as “a laundry list of drug offenses and other crimes, motor
vehicle infractions.” The court observed that Bealon had a
criminal history point subtotal of thirty-seven, nearly three
times the threshold of a category VI criminal history.
Therefore, the court found that criminal history category VI
greatly underrepresented Bealon’s significant criminal history.
Our independent review of the record confirms the
district court’s assessment of Bealon’s pattern of criminal
behavior. Bealon’s extensive criminal history encompasses
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twenty-four convictions from 2000 to 2005. Eight of the
offenses are felonies, and two of them are violent crimes. Both
the nature and volume of Bealon’s offenses demonstrate a rampant
disrespect for the law, the community at large, and the safety
of individuals therein.
In formulating the sentence, the district court
specifically addressed several of the § 3553(a) factors and
found the guidelines sentence insufficient to adequately address
them. The district court then methodically reviewed the
guidelines ranges for various offense levels, first for Bealon’s
calculated offense level of thirty-one, then for an offense
level of thirty-two, and finally for an offense level of thirty-
three. The court noted that the lower two levels would not
“adequately take into consideration the factors the [c]ourt’s
required to consider,” and would not “adequately reflect the
seriousness of [Bealon’s] past criminal conduct with the
likelihood of recidivism.” Finally, the court determined that
an offense level of thirty-three, with its corresponding
advisory guidelines range of 235 to 293 months’ imprisonment,
would be sufficient to address the § 3553(a) factors.
Accordingly, the district court sentenced Bealon to 288 months’
imprisonment.
We find that the district court did not abuse its
discretion in sentencing Bealon to 288 months’ imprisonment.
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Rather, it is apparent that the court made the requisite
“individualized assessment based on the facts presented,” United
States v. Carter, F.3d , , 2009 WL 1110786, at *2, *4
(4th Cir. Apr. 27, 2009) (No. 08-4643) (quoting Gall, 128 S. Ct.
at 597). Therefore, we affirm the judgment of the district
court. 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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