US v. James Bullock, No. 12-4516 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4516 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ANTHONY BULLOCK, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-cr-00277-D-1) Submitted: January 31, 2013 Before KING and Circuit Judge. SHEDD, Circuit Decided: Judges, and February 8, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Eric J. Brignac, Research and Writing Specialist, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Anthony Bullock was sentenced to 120 months imprisonment after pleading guilty to one count of being a felon in possession of ammunition, § 922(g)(1)(2006). in violation of 18 U.S.C. He appeals his sentence, contending that the district court erred in departing upwardly notwithstanding his acceptance of responsibility and assistance to the Government. Finding no error, we affirm. This applying an court abuse reviews of a sentence discretion States, 552 U.S. 38, 51 (2007). reasonableness, we first committed significant calculate or range, failing factors, or to consider whether error, calculating consider inadequately Gall, 552 U.S. at 51. standard. the reasonableness, Gall v. United In reviewing a sentence for procedural improperly for 18 explaining the the such district as failing sentencing U.S.C. its § court Guidelines 3553(a) selected to (2006) sentence. In the absence of significant procedural error, we next consider whether the sentence is substantively reasonable, taking into account the totality of the circumstances, including the extent of any deviation from the Guidelines range. When Id. sentencing, the district court must correctly calculating the applicable Guidelines range. States v. Evans, 526 F.3d 155, 164 (4th Cir. 2008). 2 begin by United Next, it must consider whether or not a Guidelines sentence should apply. Id. The district court may deviate from the Guidelines range where it concludes that a Guidelines provision warrants a departure, that the § 3553(a) factors warrant a variance, or that a deviation is warranted regardless. States, 551 U.S. 338, 351 (2007). Rita v. United Whether the district court bases its decision to deviate on the Guidelines or some other factor, it must provide adequate justification for the extent of its deviation. departure should justification. and Evans, 526 F.3d at 164-66. be supported by Gall, 552 U.S. at 50. outside-Guidelines sentences in are reviewing a more significant Nonetheless, both within- deferential abuse-of-discretion standard. Accordingly, A more significant for subject to the same reasonableness, this Id. at 51. court may consider the extent of the district court s deviation from the Guidelines, but must give deference to the district court s decision that the totality justifies the sentence imposed. Id. the position district court s superior of the circumstances This deference is based on to see and hear the evidence, to make credibility determinations, and to find facts and judge their import. Id. Accordingly, [t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Id. 3 Bullock does not challenge reasonableness of his sentence. appeal is that unreasonable the by procedural Rather, his sole contention on district sentence the court departing imposed upward a substantively notwithstanding his acceptance of responsibility and assistance to the Government. We conclude that this contention lacks merit. After correctly calculating Bullock s initial Guidelines range, the district court determined that an upward departure pursuant to U.S. Sentencing Guidelines Manual § 4A1.3 (2011) which permits an upward departure where a defendant s criminal history category substantially underrepresents his criminal history or likelihood of recidivism was warranted. The district court provided detailed justifications both for its decision to depart and for the extent of the departure including Bullock s substantial criminal history, which included forty-seven convictions, the serious nature and circumstances of his offense, which involved firing a gun in front of an elderly woman and several children, and his dire need of specific deterrence, which was evidenced by his immediate return upon release from custody threaten his victims. that, notwithstanding assistance to to the site of his offense to further The district court accordingly determined Bullock s authorities, the justified a 120-month sentence. 4 admission totality of of the guilt and circumstances The district court s decision to depart from the Guidelines was amply supported, and its justification for the extent of its departure was sufficiently compelling. F.3d at 164-66. reasonable. judgment. legal before Evans, 526 Bullock s sentence is therefore substantively Accordingly, we affirm the district court s We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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