US v. Tracey Thorpe, No. 12-4448 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4448 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRACEY TARRELL THORPE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. W. Earl Britt, Senior District Judge. (4:11-cr-00093-BR-1) Submitted: January 29, 2013 Decided: March 12, 2013 Before NIEMEYER, KEENAN, and DIAZ, 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 Affirmed by unpublished per curiam opinion.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. 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 Unpublished opinions are not binding precedent in this circuit.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: Tracey Tarrell Thorpe appeals the district court s judgment imposing an eighty-seven-month sentence following his guilty plea to two counts of theft of government property, in violation of 18 U.S.C. § 641 (2006), and one count of theft of the personal property § 661 (2006). of another, in violation of 18 U.S.C. Thorpe argues that his sentence was procedurally unreasonable because the district court based the length of his sentence in part on his need for drug treatment, in violation of Tapia v. United States, 131 S. Ct. 2382 (2011). Thorpe also argues that his sentence was substantively unreasonable because there was no significant justification for an upward departure of more than four years from his Guidelines range. We affirm. We review Thorpe s sentence for reasonableness under an abuse of discretion standard. U.S. 38, 46, 51 (2007). procedural error[s], improperly calculating) We first including the Gall v. United States, 552 review failing Guidelines for to significant calculate range, (or treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, . explain the chosen sentence. procedural error, individualized the assessment, . . or failing to adequately Gall, 552 U.S. at 51. district wherein 2 court it must applies the To avoid make an relevant § 3553(a) factors to the specific facts of the defendant s case. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Because Thorpe did not raise a Tapia objection in the district court, our review is for plain error. See United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (applying plain error review to challenge of raised for first time on appeal). error affects substantial sentence based on Tapia In the sentencing context, an rights only if there is a nonspeculative basis to believe that the sentence the defendant received was longer than the sentence he would have received but for the error. See United States v. White, 405 F.3d 208, 223 (4th Cir. 2005); United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 2005). In Tapia, the Supreme Court held that 18 U.S.C. § 3582(a) (2006) precludes sentencing courts from imposing or lengthening a prison rehabilitation . court here term to promote 131 S. Ct. at 2391. merely indicated at the an offender s Because the district sentencing hearing that Thorpe would have the opportunity to enter a drug rehabilitation program, we conclude that the district court did not impose a sentence to promote rehabilitation. commits no rehabilitation error within by See id. at 2392 ( A court discussing prison or treatment or training programs. ). 3 the the opportunities benefits of for specific Even if the district court did commit plain error in light of Tapia, Thorpe fails to establish that his substantial rights were affected because he proffers only speculation, and no evidence, that he received a longer sentence in promotion of his rehabilitation. Thorpe also argues that his sentence was substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion, tak[ing] into account the totality of the circumstances, including variance from the Guidelines range. reviewing a variance, we must sentencing court s decision. of any Gall, 552 U.S. at 51. In give due the extent deference to the United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011). The district court has flexibility in fashioning a sentence outside of the Guidelines range and need only set forth enough to satisfy the appellate court that [it] has considered the parties arguments and has a reasoned basis for its quotation marks omitted). supported by one[,] . . a . more a decision. at 364 (internal While a major departure should be significant district Id. court justification need not than justify a a minor sentence outside the Guidelines range with a finding of extraordinary circumstances. Id. at 366 (internal quotation marks omitted). The district court granted an upward departure after considering arguments from both parties. Moreover, the district court adequately explained its reasons for granting an upward 4 departure, noting Thorpe s extensive criminal history and high likelihood of recidivism and citing various § 3553(a) factors to justify the upward departure. district court, we conclude Under the deference due to the that Thorpe s eighty-seven-month sentence is substantively reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions this court are and adequately argument presented will not in aid the the materials decisional process. AFFIRMED 5