US v. Timothy Devine, No. 13-4227 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4227 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TIMOTHY ALEXANDER DEVINE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:07-cr-00010-D-1; 5:10-cv-00091-D) Submitted: January 31, 2014 Decided: February 11, 2014 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, 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 Unpublished opinions are not binding precedent in this circuit.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: Timothy Alexander Devine pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012). * The district court sentenced Devine to 120 months of imprisonment. The court upwardly departed from a Sentencing Guidelines range of 51 to 63 months to a range of 110 to 137 § 4A1.3(a)(1) months under (2012), U.S. based on Sentencing a Guidelines combination of Manual factors, including past convictions for serious and violent offenses, numerous probation violations, disciplinary actions, gang involvement including [new] gang involvement while in federal custody, and receipt of lenient treatment for prior felonious conduct. In addition, the court stated that even if the upward departure was erroneous, it would impose the same sentence as a variance under the factors set forth in 18 U.S.C. § 3553(a) (2012). Devine now appeals his sentence. For the reasons set forth below, we affirm. * Devine was originally sentenced pursuant to an upward variance and upward departure to a term of 262 months. In 2012, Devine filed a motion to vacate his sentence under 28 U.S.C. § 2255 (2012) based on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). The district court granted the motion to vacate the sentence because, after Simmons, Devine no longer had three qualifying felonies under 18 U.S.C. § 924(e); however, he still had two qualifying convictions under 18 U.S.C. § 922(g). Therefore, the new maximum sentence was 120 months. 2 We review a sentence for reasonableness, applying an abuse of discretion standard. Gall v. United States, 552 U.S. 38, first 46 (2007). The court reviews for significant procedural error, and if the sentence is free from such error, it then considers substantive reasonableness. Id. at 51. Procedural error includes improperly calculating the Sentencing Guidelines range, treating the Guidelines range as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, and failing to adequately explain the selected sentence. explain the sentence, the district Id. court To adequately must make an individualized assessment by applying the relevant § 3553(a) factors to the case s specific circumstances. Carter, 564 F.3d 325, 328 (4th Cir. 2009). United States v. The individualized assessment need not be elaborate or lengthy, but it must be adequate to allow Substantive meaningful reasonableness appellate examines review. the Id. totality at 330. of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Devine challenges his sentence on two grounds: (1) the district court procedurally erred in upwardly departing because his criminal history category did not underrepresent the seriousness of his criminal history, and the court failed to 3 adequately explain incrementally why it chose the criminal history category and offense level that it did; and (2) the sentence is substantively unreasonable. The Government argues that the court should affirm the sentence because the upward departure is proper under the Guidelines and, alternatively, the variance sentence is reasonable. In United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008), we explained that [w]hen . . . a district court offers two or more deviation, independent an appellate rationales court for cannot its hold [sentencing] the sentence unreasonable if the appellate court finds fault with just one of these rationales. Affirming the sentence, we stated: [t]he record provides abundant support for the district court s conclusion that the § 3553(a) factors support the sentence. Accordingly, even assuming the district court erred in applying the Guideline[s] departure provisions, Evans sentence, which is well-justified by § 3553(a) factors, is reasonable. Id.; see also United States v. Rivera-Santana, 668 F.3d 95, 104 (4th Cir.), cert. denied, 133 S. Ct. 274 (2012) (even if the district guideline because court erroneously range, the the upward departed asserted variance upward departure from based on the error § the advisory was harmless 3553(a) factors justified the sentence imposed ); United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009) (holding that even if the district court erred in its departure analysis, the resulting sentence 4 is procedurally reasonable because the district court adequately explained variance its sentence sentence, factors ). on by alternative reference to grounds the . The same reasoning applies here. . supporting . § a 3553(a) This court need not address whether the district court properly departed under § 4A1.3(a)(1) because the district court explicitly stated that it would apply the same sentence as an alternative variance sentence considering the § 3553(a) factors, and the variance sentence is reasonable. Devine has an extensive criminal history, which the district court discussed at length when considering the upward departure and § 3553(a) factors. The court noted that Devine s criminal history was serious and violent and included, among other things, two armed robberies that he was allowed to plead down on, numerous probation violations, gang activity and continuing gang involvement while in prison, an abysmal prison record in both state and federal custody, and receipt repeated lenient treatment for past felonious conduct. court credited rehabilitative Devine efforts with since his of The having matured and made first sentencing, but found that Devine s criminal history and persistent participation in gangs demonstrated that a longer sentence was incapacitate, deter, [and] provide just punishment. 5 needed to In excessively addition long, to claiming Devine claims that that his sentence the district was court substantively erred by impermissibly considering his continued gang participation in prison and erroneously finding a need to deter and continued need to incapacitate. These arguments are unavailing because both of these considerations by the court speak directly to three § 3553(a) factors. See 18 U.S.C. § 3553(a)(1) (stating that court must consider the history and characteristics of (stating court that the defendant); must 18 consider U.S.C. the § need 3553(a)(2)(B) to deter the defendant); 18 U.S.C. § 3553(a)(2)(C) (stating that court must consider the need to protect the public from further crimes of the defendant). The district court has broad discretion in sentencing decisions, see Gall, 552 U.S. at 51, and based on the court s careful consideration of the § 3553(a) factors, we cannot say that the alternative variance sentence is unreasonable. Therefore, even if the court was incorrect in upwardly departing under § 4A1.3(a)(1), that error would be harmless because the variance sentence based on the § 3553(a) factors is reasonable and thus justifie[s] the sentence imposed. Rivera-Santana, 668 F.3d at 104. We therefore affirm the sentence. oral argument because the facts 6 and We legal dispense with contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 7
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