US v. Charles Bealon, No. 08-4928 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4928 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ENNETT BEALON, JR., Defendant -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 Before TRAXLER, Judges. Chief Decided: Judge, and DUNCAN and July 21, 2009 AGEE, Circuit Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). the district court s On appeal, Bealon contends that 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 review the the [g]uidelines sentence under range, an the appellate court must 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. In assess Id. at 594, 597. determining whether the procedural district court reasonableness, properly defendant s advisory guidelines range. we first calculated Id. at 596-97. the 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 2 facts, or failed to sufficiently explain the selected sentence. Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). we review taking the into including substantive account the the extent of reasonableness totality any of of variance the from Finally, the sentence, circumstances, 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 § 4A1.3(a) U.S. (2007) Sentencing when Manual the defendant s ( USSG ) criminal Guidelines history category substantially under-represents the seriousness of the defendant s criminal defendant will Commentary to history commit the or other guideline the likelihood crimes. states USSG that, that the § 4A1.3(a)(1). [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 record. of the seriousness of the defendant s criminal 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 3 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 § 3553(a) the factors, Ct. at 597). first district as a court s justify whole, decision the that extent of the the Pauley, 511 F.3d at 473-74 (quoting Gall, 128 S. variance. the to That we would have reached a different result in instance is insufficient district court s sentence. Upon reviewing reason to reverse the Id. at 474. 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 district behavior. independent court s review assessment Bealon s of the record of Bealon s pattern extensive criminal history 4 confirms of the criminal encompasses 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 specifically addressed the sentence, several of the the district § 3553(a) court 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 thirtythree. 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] likelihood of recidivism. an offense level of past criminal conduct with the Finally, the court determined that 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 discretion find in that the sentencing district Bealon 5 to court 288 did months not abuse its imprisonment. 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). court. legal before Therefore, we affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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