US v. Zechariah Switzer, No. 10-4745 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4745 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ZECHARIAH SWITZER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:09-cr-00120-D-1) Submitted: March 23, 2011 Decided: March 31, 2011 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Dennis M. Hart, Washington, D.C., for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Eric Evenson, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Zechariah Switzer appeals the eighty-four-month sentence he received following his guilty plea to use and carry of firearms firearms during in and in of, furtherance violation of 18 Switzer, the U.S.C. relation a § district drug 924(c)(1) court to, and possession trafficking (2006). added of offense, In in sentencing twenty-four months imprisonment to his advisory sentencing range, which was the statutory mandatory minimum term of sixty months. § 924(c)(1)(A)(i); § 2K2.4(b) U.S. (2009). Sentencing For the Guidelines following See 18 U.S.C. Manual reasons, we ( USSG ) reject Switzer s arguments on appeal and affirm. Switzer first posits that, in sentencing him above the Guidelines range, the court upwardly departed pursuant to USSG § 2K2.4 cmt. n.2(B) (2009), and relied on its finding that Switzer committed perjury at sentencing to enhance his sentence pursuant to USSG § 3C1.1. In doing so, Switzer argues, the district court failed to provide him notice of its intent to depart, as required by Fed. R. Crim. P. 32(h), and opportunity to respond to the factual basis for the departure. 2 the However, the district court specifically rejected the proposition that it was departing upward, 1 stating on the record Post-Booker, 2 the that it was imposing a variance sentence. See district court acted within its discretion in doing so. generally United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (explaining that, in Rita v. United States, 551 U.S. 338 (2007), the Supreme Court recognized that a sentencing court has flexibility in fashioning a sentence outside of the Guidelines range ). As we clarified in United States v. Evans [A]dherence to the advisory Guidelines departure provisions provides one way for a district court to fashion a reasonable sentence outside the Guidelines range, it is not the only way. Rather, after calculating the correct Guidelines range, if the district court determines that a sentence outside that range is appropriate, it may base its sentence on the Guidelines departure provisions or on other factors so long as it provides adequate justification for the deviation. 526 F.3d 155, 164 (4th Cir. 2008). Because there simply was no departure in this case, we reject Switzer s argument pertaining to the alleged improprieties in the departure procedure. further reject Switzer s ancillary argument that 1 the We court Switzer correctly identifies that USSG § 2K2.4(b) governed his offense conduct and that Application Note 2(B) to that guideline provides that, for sentences imposed pursuant to subsection (b), a sentence above the minimum term required by 18 U.S.C. § 924(c) . . . is an upward departure from the guideline sentence. 2 United States v. Booker, 543 U.S. 220 (2005). 3 failed to make the factual findings necessary for an enhancement pursuant to USSG § 3C1.1. Switzer sentence. next challenges the reasonableness of his [N]o matter what provides the basis for a deviation from the Guidelines range[,] we review the resulting sentence only for reasonableness. Evans, 526 F.3d at 164 (citing Gall v. United States, 552 U.S. 38, 50 (2007)). apply an abuse of discretion standard. In doing do, we Gall, 552 U.S. at 51; see also United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires consideration of both procedural and substantive reasonableness of a sentence. the Gall, 552 U.S. at 51. In determining procedural reasonableness, this court considers whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. Regardless of whether the district court imposes an above, below, or within-Guidelines record an individualized sentence, assessment facts of the case before it. it based must on place the on the particular United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). An extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered 4 the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. United States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at 356) (alterations in original), cert. denied, 131 S. Ct. 165 (2010). Switzer maintains the district court did not individually assess his case, as evidenced by its reliance on its finding that he lied at sentencing to impose an additional two years of imprisonment. To be sure, the court properly determined that Switzer s attempt to minimize and disavow his criminal conduct supported the variance, but it also identified several other likelihood of sentencing recidivism; factors, the need including: to impose Switzer s a sentence sufficient to deter others from engaging in similar conduct and to protect the public from Switzer s crimes; and that, in terms of Switzer s personal characteristics, appreciate the seriousness of his conduct. Switzer did not The district court s explanation reflects its thorough, individualized assessment of this case in light of the § 3553(a) factors, and was more than adequate to support the upward variance. Grubbs, 585 F.3d § 3553(a)-based[] provides 793, 805 (4th explanation independent grounds Cir. of for 5 See United States v. 2009) (opining [defendant s] a variance that a sentence sentence and verifies the reasonableness of the district court s sentencing determination ), cert. denied, 130 S. Ct. 1923 (2010). Having determined that there is no procedural error, we next assess the substantive reasonableness of the sentence. This inquiry requires us to review whether the District Judge abused his discretion in determining that the § 3553(a) factors supported [the sentence] and justified a substantial deviation from the Guidelines range. the court must take Gall, 552 U.S. at 56. into account the In doing so, totality of the circumstances, including the extent of any variance from the United States v. Morace, 594 F.3d 340, 346 Guidelines range. (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). district court s We discern reliance on no abuse Switzer s of discretion in misrepresentations the at sentencing and the other identified § 3553(a) factors to support its decision to vary upward. See Diosdado-Star, 630 F.3d at 366-67 (holding sentencing court s decision to impose a sentence six years longer than advisory Guidelines range was reasonable, because court employed § 3553-based reasoning to justify the variance). For judgment. legal these reasons, we affirm the district court s We dispense with oral argument because the facts and contentions are adequately 6 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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