US v. Randy Linniman, No. 07-5130 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5130 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RANDY J. LINNIMAN, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:07-cr-00037-D-1) Submitted: February 19, 2009 Decided: March 19, 2009 Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C., Jacksonville, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, David A. Bragdon, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randy J. Linniman appeals his conviction and 168-month departure sentence after pleading guilty pursuant to a plea agreement to unlawful transfer of a firearm, in violation of 26 U.S.C. §§ 5812, 5861, 5871 (2006), and unlawful possession of firearms with altered serial numbers, in violation of 18 U.S.C. §§ 922(k), 924 (2006). Linniman asserts that the district court erred when it imposed a departure sentence: (i) without first affording him adequate notice that it planned to depart upward; (ii) that was too extensive for the crimes to which he pled guilty; and (iii) without sufficient analysis to support the departure sentence. Finding no error, we affirm. Because Linniman did not object to the lack of Fed. R. Crim. P. 32(h) notice in the district court, this court reviews this issue for plain error. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Rule 32(h) requires the sentencing court to give the parties reasonable notice when it is considering a departure on a ground not identified as a possible basis for departure either in the presentence report or in a party's prehearing submission. Fed. R. Crim. P. 32(h). Because the district court imposed a departure sentence based on the same grounds identified by the Government in its upward departure motion, the district court was not required to provide Rule 32 notice. 2 Although factual Linniman correctness sentencing and unjustified in does does of the not claim departing not dispute district that under the the the or findings court s legal at district relevant court was Guidelines provisions, Linniman does assert that his sentence is close to the maximum and that the district court did not provide a rigorous analysis before imposing the sentence. * We conclude that the district court provided ample analysis of the reasons it believed only during detailed Linniman s Linniman s sentencing departure sentence sentencing memorandum. was hearing, Given the warranted, but also not in significant a risk associated with the particular conduct for which Linniman was convicted, the district court s meaningful articulation of its consideration of the 18 U.S.C. § 3553(a) (2006) factors, and its careful consideration of reasons warranting a departure from the Guidelines range, we also find that the extent of Linniman s departure sentence was reasonable. See United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). * Although Linniman also asserts that the district court erred by relying on conduct of which he was acquitted in a state court jury trial, this argument is meritless. See United States v. Watts, 519 U.S. 148, 155-56 (1997) (holding that sentencing courts may take acquitted conduct into account when determining the appropriate sentence because a lower standard of proof applies at the sentencing stage). 3 Based on the foregoing, we affirm the district court s judgment. legal before 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 4
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