US v. Norman Hinton, No. 08-5198 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5198 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORMAN D. HINTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (4:06-cr-00088-D-1) Submitted: September 24, 2009 Decided: December 4, 2009 Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph E. Zeszotarski, Jr., POYNER SPRUILL, LLP, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Norman D. Hinton pled guilty to assault on a United States Government employee, § 111(a)(1), (b) (2006). pursuant to U.S. in violation of 18 U.S.C. The district court departed upward Sentencing Guidelines Manual ( USSG ) § 4A1.3(a), p.s. (2007), and sentenced Hinton to 132 months in prison. On appeal, Hinton argues that the district court abused its discretion by imposing a departure sentence and that his sentence was unreasonable. Finding no merit, we affirm. When determining a sentence, the district court must calculate the appropriate advisory guidelines range and consider it in conjunction with the factors set forth in 18 § 3553(a) (2006). Gall v. United States, 552 U.S. 38, S. (2007). Ct. 586, whether 596 inside, just Appellate outside, or review of a significantly U.S.C. , 128 sentence, outside [g]uidelines range, is for abuse of discretion. the Id. at 591. If the district court determines that a sentence outside the guidelines range is appropriate, the reviewing court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law. United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). A district court may depart upward from the guidelines range under criminal USSG history § 4A1.3(a), category p.s., when substantially 2 the defendant s under-represents the seriousness of the defendant s criminal history or likelihood that the defendant will commit other crimes. § 4A1.3(a)(1), p.s. the USSG In 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, p.s., cmt. n.2(B). Here, conclusion the that record Hinton s supports criminal the history district category court s failed to adequately reflect the seriousness of his criminal history and the likelihood of his recidivism. Hinton had an extensive history of violent felonies, multiple unscored convictions not included in calculating his criminal history category, a lengthy history of lenient sentences followed by abysmal performance while on probation. recidivism, and an Thus, the district court did not err in imposing a departure sentence. We also find that the sentence imposed by the district court was both procedurally and substantively reasonable. district court followed sentencing Hinton, considering the guidelines to the necessary including applicable fashion an procedural properly guidelines appropriate steps calculating range, departure using The in and the sentence, performing an individualized assessment of the § 3553(a) factors 3 to the facts of the case, and stating in open court the reasons for the sentence. See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Further, the sentence was substantively reasonable under the totality of the circumstances. Despite Hinton s account contentions, the district court took into Hinton s mental health and the nature and characteristics of the offense in fashioning a sentence. The court articulated the relevant the factors including: that Hinton s warranted extraordinary departure criminal history sentence, and past lenient treatment, the seriousness of assaulting a Government employee in the federal courthouse, the need to deter Hinton and others from committing similar crimes, the need to protect the public in light of Hinton s likely recidivism, and the need for an appropriate sentence for rehabilitation and treatment for his cognitive limitations and mental illness. We conclude that the district court did not abuse its discretion in imposing the 132-month sentence. affirm the district court s judgment. We We therefore 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 4
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