US v. Roger Arthur, Jr., No. 12-4435 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4435 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROGER JUNIOR ARTHUR, JR., a/k/a Roger Arthur, Jr., a/k/a Busy, a/k/a Biz, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:11-cr-00055-BO-1) Submitted: September 10, 2013 Decided: September 27, 2013 Before GREGORY, SHEDD, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Dennis H. Sullivan, Jr., SULLIVAN & WAGONER LAW FIRM, Wilmington, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roger Junior Arthur, Jr., pleaded guilty, pursuant to a written plea agreement, to a two-count indictment charging him with knowingly possess with and intentionally intent to conspiring distribute a with others to of heroin, in quantity violation of 21 U.S.C. § 846, and knowingly and intentionally possessing with intent to distribute a quantity of heroin, and aiding and abetting § 841(a)(1) and 18 another, U.S.C. in § 2. violation Prior to of 21 U.S.C. sentencing, the government filed a motion for an upward departure under § 4A1.3. Arthur received a sentence of forty-one months, which was above the Sentencing Guidelines range. the district court departed erred in doing so. unreasonable. upward and that it procedurally He also contends his total sentence is Finding no error, we affirm. Arthur procedural On appeal, Arthur argues that argues error when that it the departed district upward court committed the Guidelines of range, pursuant to U.S. Sentencing Guidelines Manual § 4A1.3(a). Arthur also argues that the forty-one-month sentence is unreasonable because it creates a sentencing disparity; it is greater than necessary to achieve the factors set forth in 18 U.S.C. § 3553(a); and the court failed to consider mitigating circumstances. The government contends that the court did not in fact impose an upward departure, but instead varied upward 2 outside the Guidelines range. The government also argues that the district court imposed a reasonable sentence. The permissible factors justifying traditional departures differ from--and are more limited than--the factors a [district] court variance. United States v. Hampton, 441 F.3d 284, 288 n.2 (4th Cir. 2006). As may look to departures in are order thus to justify subject to a . . . different requirements than variances, United States v. Floyd, 499 F.3d 308, 311 (3d Cir. 2007), it is important for district courts to articulate whether a sentence is a departure or a variance from an advisory Guidelines range. United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009) (internal quotations omitted). However, the method of deviation from the Guidelines range--whether by a departure or by varying--is irrelevant so long as at least one rationale is justified and reasonable. United States v. Diosdado-Star, 630 F.3d 359, 365-66 (4th Cir. 2011). At the sentencing hearing, the court stated that based on these facts and [§] 3553(a), I ll vary the sentence upwardly. J.A. 40 (emphasis added). The court determined that offense level 18 with criminal history category III would result in a satisfactory appropriate variance. sentence and the range would be an Id. (emphasis added). This is further underscored by the written statement of reasons entered by the court. 3 The court did not mark the box to indicate that the court departed from the advisory Guidelines range; it marked the box that it imposed a sentence outside the advisory range. See J.A. 71. The only slight indication to the contrary is that the court also marked the box for the sentence being imposed pursuant to a government motion for a sentence outside of the advisory guideline system not addressed in a plea agreement. upward J.A. 72. departure under The government s motion was for an USSG § 4A1.3; however, during the sentencing hearing, the court did not specifically grant the motion or state that it was departing upward. In the section for reasons that the sentence is outside the advisory Guidelines range, the court marked as reasons due to the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to 18 U.S.C. § 3553(a)(1) and to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (18 U.S.C. § 3553(a)(2)(A)). appropriate to consider J.A. for a departure under USSG § 4A1.3. 72. variance, The but factors not an were upward Accordingly, Arthur s arguments challenging the procedural reasonableness of his sentence as the result of an erroneous upward departure are moot and are rejected. As to the overall reasonableness of the sentence as an upward variance, we review a 4 sentence for reasonableness, applying an abuse of discretion standard. States, 552 U.S. 38, 46 (2007). Gall v. United The court first reviews for significant procedural error, and if the sentence is free from such error, we then consider substantive reasonableness. 51. Procedural error includes improperly Id. at calculating the Guidelines range, treating the Guidelines range as mandatory, failing to adequately consider explain the the § 3553(a) selected factors, sentence. and Id. failing to Substantive reasonableness is determined by considering the totality of the circumstances, including the extent of any deviation from the Guidelines range. Id. An upward variance is permitted where justified by the § 3553(a) factors. See id. This court must give due deference to the district court s determination that the § 3553(a) factors justify the extent of a variance, and the fact that this court might find a different sentence appropriate is insufficient to justify reversal of the district court. Id. We conclude that Arthur s above-Guidelines sentence is reasonable. The district court properly calculated Arthur s Guidelines range, treated the range as advisory, and adequately explained the selected sentence. The court specifically explained that Arthur s above-Guidelines sentence was warranted by the facts presented by the government as well as multiple § 3553(a) factors. J.A. 40. The court was particularly concerned with Arthur s high likelihood of recidivism and the 5 significant Arthur s nature role of in the it. heroin trade Accordingly, in Wilmington Arthur s sentence and is procedurally reasonable. Arthur s considering the extent the of approximately Guidelines sentence totality of is also the variance. one-third range, circumstances, Though higher the substantively than district including the sentence is Arthur s the court high did reasonable, end his abuse not of its discretion in determining that such a deviation was justified by the § 3553(a) factors, including Arthur s criminal history, the need to protect the public, and the need to provide adequate deterrence. We therefore conclude that Arthur s forty-one-month sentence is reasonable. Accordingly, we affirm the judgment. government s motion to dismiss the appeal. oral argument adequately because presented in the the facts and materials We deny the We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED 6

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