US v. Charles Deese, No. 10-5258 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5258 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES RAY DEESE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:10-cr-00064-F-1) Submitted: November 10, 2011 Decided: December 5, 2011 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Thomas B. Murphy, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Ray Deese pled guilty to possessing firearms and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and possessing with intent to distribute more than five grams of cocaine base and a quantity of cocaine powder, in violation of 21 U.S.C. § 841(a)(1) (2006). sentenced to 293 months imprisonment. argues his sentence is unreasonable. We review sentences In this appeal, Deese We affirm. for abuse-of-discretion standard. Deese was reasonableness, applying an Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011). This review requires consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51. In determining procedural reasonableness, we consider whether the district Guidelines court properly range, calculated considered the the 18 defendant s U.S.C. advisory § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and Gall, 552 U.S. at sufficiently explained the selected sentence. 51. Regardless of whether the district court imposes an above, below, or within-Guidelines record an individualized assessment facts of the case before it. 325, 330 (4th Cir. 2009) sentence, it based must on place the on the particular United States v. Carter, 564 F.3d (internal 2 quotation marks omitted). Once we confirm that a sentence is procedurally reasonable, we can consider tak[ing] the into substantive account the reasonableness totality of of the the sentence, circumstances. Gall, 552 U.S. at 51. Deese argues that the district court imposed a procedurally unreasonable sentence because it did not address his argument for a sentence at the bottom of the Guidelines range. We have reviewed the sentencing transcript with the above standards in mind and conclude that the district court adequately responded individualized to Deese s assessment, and arguments, explained the provided sentence an imposed with sufficient detail to allow for meaningful appellate review. See Rita v. United States, 551 U.S. 338, 356-59 (2009). Thus, Deese is not entitled to relief on this claim. Deese because the also contends district court his sentence classified him as is unreasonable both a career offender and an armed career criminal and then also upwardly departed under § 4A1.3(a) criminal U.S. (2010), history. Sentencing based When on Guidelines the Manual ( USSG ) reviewing underrepresentation a departure, of this his court considers whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect range. to the extent United of the divergence States v. McNeill, 3 from 598 the F.3d sentencing 161, 166 (4th Cir. 2010) (internal quotation marks other grounds, 131 S. Ct. 2218 (2011). the highest criminal history n.2(B). Furthermore, § 4A1.3, p.s., will an be aff d VI, are specifically USSG § 4A1.3(a)(4)(B) & cmt. upward departure appropriate in pursuant some to when cases USSG the See USSG defendant is sentenced as an armed career criminal. § 4B1.4 cmt. background; see on Upward departures from category, contemplated by the Guidelines. omitted), also McNeill, 598 F.3d at 166 (rejecting argument that upward departure is contemplated only where armed career criminals have criminal history category of IV or V). We conclude that the depart upwardly was reasonable. extensive, category exceeding of properly VI by applied § 4A1.3(a)(4)(B). a the of court s decision to Deese s criminal history was criteria factor the district two, incremental for and a criminal the approach history district set court forth in Giving due deference to the district court s decision that the record on a whole justified the extent of the deviation, we conclude that the extent of the departure is a reasonable exercise discretion. of the district court s sentencing See Gall, 552 U.S. at 51; Diosdado-Star, 630 F.3d at 366-67. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and 4 legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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