US v. Courtney Dunn, No. 10-4643 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4643 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. COURTNEY LEE DUNN, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cr-00293-FL-1) Submitted: December 15, 2010 Decided: January 10, 2011 Before GREGORY, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Wayne Buchanan Eads, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Courtney Lee Dunn pleaded guilty to possession of a firearm after punishable by having a term previously of been imprisonment convicted exceeding violation of 18 U.S.C. § 922(g)(1) (2006). of one a crime year, in The district court sentenced Dunn to 108 months of imprisonment and he now appeals. Finding no error, we affirm. Dunn first challenges the district court s imposition of a departure sentence pursuant to U.S. Sentencing Guidelines Manual ( USSG ) reasonableness, § 4A1.3 (2009). applying an We abuse review of a sentence discretion for standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the procedural sentence for significant error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or explain the chosen sentence . . . . failing to adequately Gall, 552 U.S. at 51. Finally, this court considers the substantive reasonableness of the sentence, tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Id. 2 When reviewing a departure, this court considers whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range. States v. 2007). Hernandez-Villanueva, 473 F.3d 118, 123 United (4th Cir. Under USSG § 4A1.3(a)(1), [i]f reliable information indicates that substantially defendant s the defendant s under-represents criminal history criminal the or history category seriousness the of the likelihood that the defendant will commit other crimes, an upward departure may be warranted. We have thoroughly reviewed the record and conclude that the district court s decision to upwardly depart was reasonable, the extent of the departure is reasonable and supported by the record, and the court adequately explained both its decision to depart and the extent of its departure. Dunn next argues that the court failed to adequately explain the chosen sentence. individualized assessment A district court must conduct an of the particular facts of every sentence, whether the court imposes a sentence above, below, or within the guidelines range. 325, 330 (4th Cir. United States v. Carter, 564 F.3d 2009). While [t]his individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review. 3 Id. at 330 (internal quotation marks and citation omitted). In addition, [w]here [the reasons imposing a range,] . . . parties] . . . a present[] sentence district nonfrivolous [outside judge the should advisory address Guidelines the party s arguments and explain why he has rejected those arguments. at 328 (internal quotation marks and citation omitted). reviewed the extensive record, statements we at conclude sentencing that the district sufficiently for Id. Having court s explained the court s rationale underlying the sentence, and that the court adequately responded to the parties nonfrivolous sentencing arguments. Accordingly, we affirm the judgment of the district court. 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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