Filed: Dec. 05, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES RAY DEESE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:10-cr-00064-F-1) Submitted: November 10, 2011 Decided: December 5, 2011 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curia
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES RAY DEESE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:10-cr-00064-F-1) Submitted: November 10, 2011 Decided: December 5, 2011 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES RAY DEESE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:10-cr-00064-F-1)
Submitted: November 10, 2011 Decided: December 5, 2011
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Thomas B. Murphy, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Ray Deese pled guilty to possessing firearms
and ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and possessing with intent to distribute
more than five grams of cocaine base and a quantity of cocaine
powder, in violation of 21 U.S.C. § 841(a)(1) (2006). Deese was
sentenced to 293 months’ imprisonment. In this appeal, Deese
argues his sentence is unreasonable. We affirm.
We review sentences for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Diosdado-Star,
630 F.3d 359, 363
(4th Cir.), cert. denied,
131 S. Ct. 2946 (2011). This review
requires consideration of both the procedural and substantive
reasonableness of a sentence.
Gall, 552 U.S. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence.
Gall, 552 U.S. at
51. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter,
564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
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Once we confirm that a sentence is procedurally reasonable, we
can consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51.
Deese argues that the district court imposed a
procedurally unreasonable sentence because it did not address
his argument for a sentence at the bottom of the Guidelines
range. We have reviewed the sentencing transcript with the
above standards in mind and conclude that the district court
adequately responded to Deese’s arguments, provided an
individualized assessment, and explained the sentence imposed
with sufficient detail to allow for meaningful appellate review.
See Rita v. United States, 551 U.S. 338, 356-59 (2009). Thus,
Deese is not entitled to relief on this claim.
Deese also contends his sentence is unreasonable
because the district court classified him as both a career
offender and an armed career criminal and then also upwardly
departed under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a) (2010), based on the underrepresentation of his
criminal history. When reviewing a departure, this court
considers “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. McNeill, 598 F.3d 161, 166
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(4th Cir. 2010) (internal quotation marks omitted), aff’d on
other grounds, 131 S. Ct. 2218 (2011). Upward departures from
the highest criminal history category, VI, are specifically
contemplated by the Guidelines. USSG § 4A1.3(a)(4)(B) & cmt.
n.2(B). Furthermore, an upward departure pursuant to USSG
§ 4A1.3, p.s., will be appropriate in some cases when the
defendant is sentenced as an armed career criminal. See USSG
§ 4B1.4 cmt. background; see also
McNeill, 598 F.3d at 166
(rejecting argument that upward departure is contemplated only
where armed career criminals have criminal history category of
IV or V).
We conclude that the district court’s decision to
depart upwardly was reasonable. Deese’s criminal history was
extensive, exceeding the criteria for a criminal history
category of VI by a factor of two, and the district court
properly applied the incremental approach set forth in
§ 4A1.3(a)(4)(B). Giving due deference to the district court’s
decision that the record on a whole justified the extent of the
deviation, we conclude that the extent of the departure is a
reasonable exercise of the district court’s sentencing
discretion. See Gall, 552 U.S. at 51;
Diosdado-Star, 630 F.3d
at 366-67.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
4
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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