US v. Jomario Hand, No. 13-4292 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4292 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOMARIO ANTIONE HAND, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:12-cr-00091-FL-1) Submitted: December 17, 2013 Decided: December 26, 2013 Before NIEMEYER, WYNN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion.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. 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 Unpublished opinions are not binding precedent in this circuit.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: Jomario Antione Hand appeals the forty-one month sentence imposed after he pled guilty, without a plea agreement, to one count of conspiracy to possess, store, barter, sell, or dispose of a stolen firearm, in violation of 18 U.S.C. § 371 (2012), and one count of possession of a stolen firearm, in violation of 18 U.S.C. § 922(j) (2012). We affirm. On appeal, Hand contends that the court misapplied the Sentencing Guidelines by relying on relevant conduct to upwardly depart for under-representation of criminal history, pursuant to U.S. Sentencing Guidelines Manual (USSG) § 4A1.3 (2012). He asserts that criminal history and relevant conduct are mutually exclusive and that a district court is prohibited from using relevant conduct to compute the criminal history score and to upwardly depart history. based on under-representation (Appellant s Br. at 11). of criminal The Government responds that, because Hand did not assert in the district court the argument he raises on appeal, plain error review applies. that standard, the district court did not err in Under upwardly departing, and even if the court committed procedural error, the error was harmless in light of the court s alternative variance explanation. In reply, Hand argues that he sufficiently preserved his objection to the departure, and that the court s 2 post hoc variance discussion does not rescue its erroneous departure sentence. This substantive reviews a sentence under reasonableness standard. same court an for procedural abuse of discretion Gall v. United States, 552 U.S. 38, 51 (2007). standard applies whether the sentence is v. Rivera-Santana, 668 F.3d 95, The inside, outside, or significantly outside the Guidelines range. States 100-01 and just United (4th Cir.) (internal citation and quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). In determining procedural reasonableness, this court considers whether the district court properly calculated the defendant s advisory Guidelines range, gave the sentence, selected parties an considered a sentence opportunity the 18 based to U.S.C. on argue for § 3553(a) clearly appropriate (2012) erroneous sufficiently explained the selected sentence. 49-51. an factors, facts, and Gall, 552 U.S. at In reviewing any sentence outside the Guidelines range, the appellate court must give due deference to the sentencing court s decision because it has flexibility in fashioning a sentence outside of the Guidelines range, and need only set forth enough to satisfy the appellate court that it has considered the parties arguments and has a reasoned basis for its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (citing Gall, 552 U.S. at 56). 3 In this case, we conclude that Hand sufficiently preserved the claim he asserts on appeal by stating that he objected to the upward departure. See United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010) ( When the sentencing court has already heard argument and allocution from the parties and weighed the sentence, relevant we see § 3553(a) no benefit factors in before requiring the pronouncing defendant to protest further. ). Section reliable 4A1.3 information authorizes indicates an that upward the departure defendant s when criminal history category substantially under-represents the seriousness of the defendant s criminal history or the likelihood that the defendant will commit other crimes. This court has stated that USSG § 4A1.3(a)(1), p.s. [s]ection 4A1.3 was drafted in classic catch-all terms for the unusual but serious situation where the criminal history category does not adequately reflect past criminal conduct or predict future criminal behavior. United States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). Hand considering argues relevant that conduct the as district a basis court for its citing three cases from other circuits as support. erred in departure, We conclude that these cases are distinguishable, as the conduct considered by the sentencing courts in those cases was used to determine the defendant s offense level and cited by the court as a basis 4 for an upward departure. In this case, there is no indication in the record that conduct underlying Hand s convictions for breaking and entering was used to determine his offense level. We also conclude that the district court correctly considered the full scope of Hand s prior criminal conduct in determining whether to depart under § 4A1.3. In determining the sentence to impose within the guideline range, or whether a departure from consider, without background, the guidelines limitation, character, and otherwise prohibited by law. is warranted, any information conduct of the USSG § 1B1.4. the court may concerning the defendant, unless The district court did not err in upwardly departing. Accordingly, we affirm Hand s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5

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