US v. Glenn McDougald, No. 09-4483 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4483 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GLENN BARRY MCDOUGALD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:08-cr-00092-D-1) Submitted: July 14, 2010 Before MOTZ and Circuit Judge. SHEDD, Decided: Circuit Judges, and August 6, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Banumathi Rangarajan, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Glenn Barry McDougald pled guilty to possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924 (2006), and was sentenced as an armed career criminal to a term of 324 months of imprisonment. McDougald argues on appeal that his sentence is unreasonable because the district court s fourlevel departure above the Sentencing Guidelines range pursuant to U.S. Sentencing unwarranted. A Guidelines Manual § 4A1.3 (2008) was We affirm. sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id. After determining whether the district court properly calculated the defendant s advisory guideline range, the appellate court considers whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, the appeals court reviews the substantive reasonableness totality of of the the sentence, circumstances, including variation from the Guidelines range. 2 taking into the account extent of Gall, 552 U.S. at 51. the any When reviewing a departure, we consider whether the sentencing decision court to acted impose reasonably such a both sentence with to its with and respect respect to the extent of the divergence from the sentencing range. States v. 2007). Hernandez-Villanueva, Under indicates USSG that substantially defendant s 473 § 4A1.3(a)(1), the defendant s under-represents criminal F.3d [i]f or the 123 reliable criminal the history 118, United (4th Cir. information history category seriousness of the likelihood that the defendant will commit other crimes, an upward departure may be warranted. Additionally, upward departures from the highest criminal history category, VI, are specifically contemplated by the guidelines. Commentary to USSG § 4A1.3, p.s., provides: In the case of an egregious, serious criminal record in which even the guideline range for Criminal History Category VI is not adequate to reflect the seriousness of the defendant s criminal history, a departure above the guideline range for a defendant with Criminal § 4A1.3, armed History comment. career Category (n.2(B)). criminal VI may be Furthermore, guideline reflects warranted. commentary that an USSG to the 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, comment. (back d.) ( In some cases, the criminal history category may not adequately reflect the 3 defendant s criminal history. ); see also United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (rejecting argument that an upward departure is contemplated only where armed career criminals have a criminal history category IV or V). Here, the district court s decision to depart upwardly was reasonable. committed The district court noted that McDougald had thirty-one highlighted repeatedly prior McDougald s remarked on felonies multitude and of McDougald s eight unscored staggering misdemeanors; offenses; and propensity to commit serious offenses and his unwillingness to conform to the law. In fact, the court noted McDougald continued to engage in illegal conduct while incarcerated and on probation. McDougald had four times the number of predicate crimes necessary for an armed career criminal sentence. The record therefore supports the court s conclusion that McDougald s armed career criminal designation failed to adequately reflect both the seriousness of his criminal history and his likelihood of recidivism. In addition, we conclude the extent of the district court s departure was reasonable. In determining the extent of a departure under USSG § 4A1.3, the district court must use an incremental approach. See USSG § 4A1.3(a)(4)(A); McNeill, 598 F.3d at 166; United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). The incremental approach requires the district court to refer first to the next higher category and explain why 4 it fails to reflect the seriousness of the defendant s record before considering Rusher, 966 F.2d a higher 868, category. 884 (4th See Cir. United v. However, 1992). States a sentencing judge is not required to move only one level, or to explain its rejection of each and every intervening level. Dalton, 477 F.3d at 199 (internal quotations omitted). And while a court should indicate its reasons for departing upward under section 4A1.3, it need not . . . go through a ritualistic exercise in which it mechanically discusses each criminal history category or offense level it rejects en route to the category or offense level that it selects. Id. (internal quotations and brackets omitted). With respect to the degree of departure, the court employed the methodology required by USSG § 4A1.3, p.s., for crafting an upward departure when even criminal history category VI is level insufficient. of thirty incrementally Having was down found inadequate, the sentencing McDougald s the district table to total court the offense mov[ed] next higher offense level in Criminal History Category VI until it [found] a guideline range appropriate § 4A1.3(a)(4)(B), p.s. that offense levels to the case. USSG The district court specifically found thirty-one through thirty-three were not adequate to reflect the seriousness of the defendant s criminal history or the likelihood that he will commit future crimes, 5 including violent crimes. The court also properly rejected McDougald s argument that an upward departure effectively denied McDougald s acceptance of responsibility, noting that the upward departure was about his criminal history and his likelihood of recidivism. We conclude the district court s decision to depart under § 4A1.3 was factually supported and that the resulting sentence was reasonable. Moreover, the explained its reasons for the departure. McDougald s sentence. court adequately We therefore affirm 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 6

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