US v. Steven Thompson, No. 10-5023 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5023 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STEVEN THOMPSON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, Chief District Judge. (5:09-cr-00373-FL-1) Submitted: May 20, 2011 Decided: June 23, 2011 Before MOTZ, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven Wayne Thompson pled guilty to health care fraud and was sentenced to fifty-eight months of imprisonment. He argues on appeal that the district court abused its discretion by departing upward, by the extent of the departure, and by failing to adequately explain the reasons for departing. We find no abuse of discretion and therefore affirm. A sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id. After determining whether the district court properly calculated the defendant s advisory Guidelines range, the appellate court considers whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, the appeals court reviews the substantive reasonableness totality of of the the sentence, circumstances, taking including variation from the Guidelines range. into the account extent of the any Gall, 552 U.S. at 51. When reviewing a departure, we consider whether the sentencing decision to court acted impose such reasonably a both sentence 2 and with respect to its 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 U.S. Sentencing Guidelines Manual § 4A1.3(a)(1) (2010), [i]f defendant s reliable criminal information history indicates category that substantially the under- represents the seriousness of the defendant s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted. Additionally, upward departures from the highest criminal history category, VI, are specifically contemplated by the Guidelines. USSG § 4A1.3, comment. (n.2(B)). Here, the district court s decision to depart upwardly was reasonable. Thompson s The repeated district and court numerous found that, offenses because of of obtaining prescription pain medication by fraud, an upward departure was warranted based on an increased risk of recidivism, [and] the need to protect the public. The court stated that Thompson s repeated conduct evidenced by his criminal history led her to believe that an 18 to 24 month sentence was insufficient to prevent Thompson from returning to doing exactly what he s done for just about all of his life. that an upward departure was The court therefore concluded warranted to account for the seriousness of his criminal history and the likelihood that he would commit other crimes. Moving 3 incrementally down the sentencing table the court found that the 57 to 71 month range, at offense level 17, appropriately accounted for the seriousness of Thompson s committing parties court criminal other and history crimes. considering sentenced him and After the to 58 § the likelihood hearing 3553(a) months factors, him from argument of the the imprisonment, district an upward departure from the 18 to 24 month advisory Guidelines range. We conclude that the district court did not abuse its discretion in determining that a departure was warranted. In addition, we conclude the extent of the district court s departure was reasonable. In determining the extent of a departure under USSG § 4A1.3, the district court must use an incremental States v. approach. Dalton, 477 See F.3d USSG 195, § 199 4A1.3(a)(4)(A); (4th Cir. United 2007). The incremental approach requires the district court to refer first to the next higher category and explain why it fails to reflect the seriousness of the defendant s record before considering a higher category. See United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). The required departure. by court USSG Having appropriately § 4A1.3, found p.s., Thompson s employed for the crafting offense level methodology an of upward 8 was inadequate, the district court mov[ed] incrementally down the sentencing table to the next higher offense level in Criminal 4 History Category appropriate to VI the until case. it USSG [found] a guideline § 4A1.3(a)(4)(B), range p.s. The district court specifically found that offense levels 9 through 16 were not defendant s adequate criminal to history reflect or the the seriousness likelihood that of the he will commit future crimes. We conclude the district court s decision to depart under § 4A1.3 was factually supported and that the resulting sentence was reasonable. Moreover, the explained its reasons for the departure. Thompson s sentence. facts and materials legal before court adequately We therefore affirm We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 5
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