US v. Joel Artis, No. 13-4337 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4337 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL DEVON ARTIS, Defendant - Appellant.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. (5:12-cr-00091-D-1) Submitted: January 27, 2014 Decided: February 12, 2014 Before DAVIS, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North Carolina, for Appellant. Thomas G. Walker, 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 Unpublished opinions are not binding precedent in this circuit.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: Joel imposed Devon after he Artis pled appeals guilty to the 120-month possession sentence with intent to distribute a quantity of marijuana and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2012). The district court departed upward pursuant to U.S. Sentencing Guidelines Manual (USSG) § 5K2.21 (2011), based on Artis s conduct in shooting an assailant during a drug transaction that became an attempted robbery and continuing to fire a handgun during a struggle with the assailant. court s use pursuant On of to appeal, this USSG Artis conduct to argues that enhance § 2D1.1(b)(1) the his (possession district offense of a level dangerous weapon) and USSG § 2D1.1(b)(2) (use of violence), and also to support an upward departure under § 5K2.21 for conduct, amounted to impermissible double counting. This substantive standard. same court reviews reasonableness a sentence under an for abuse uncharged We affirm. procedural of discretion Gall v. United States, 552 U.S. 38, 51 (2007). standard applies whether the sentence is inside, outside, or significantly outside the Guidelines range. States v. Rivera-Santana, 668 F.3d 95, 100-01 and (4th The just United Cir.) (internal citation and quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). In evaluating procedural reasonableness, we consider whether the district court properly calculated the 2 defendant s advisory Guidelines range, gave the parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) factors, selected a sentence supported by the record, and sufficiently explained the selected sentence. Gall, 552 U.S. at 49-51. In range, the sentencing reviewing appellate court s any sentence court decision must outside give because it due the Guidelines deference has to flexibility the 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 decision. United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011). error, the court If the sentence is free of procedural reviews it for substantive reasonableness, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. Section 5K2.21 of the Guidelines provides that The court may depart upward to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range. USSG § 5K2.21, p.s. Double counting occurs when a provision of the Guidelines is applied to increase punishment on the basis of 3 a consideration that had been accounted for by application of another Guideline provision or by application of a statute. United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004). Unless expressly prohibited by the Guidelines, double counting is permitted. Id. Even if we assume that the district court erred by impermissibly double counting the conduct in question, a procedural sentencing error is harmless where this court has (1) knowledge that the district court would have reached the same result even if it had decided the [G]uidelines issue the other way, and (2) a determination that the sentence would be reasonable even if the [G]uidelines issue had been decided in the defendant s favor. F.3d 119, omitted). 123 (4th United States v. Savillon-Matute, 636 Cir. 2011) (internal quotation marks The district court in this case clearly stated that it would impose the same sentence as an upward variance based on its consideration of the § 3553(a) factors. Before the upward departure, Artis s sentencing range was twenty-seven to thirtythree months of imprisonment, and the court s 120-month sentence is a variance of 263 percent. Our review of the record leads us to conclude that the serious nature of Artis s conduct, which was thoroughly described by the district court, demonstrates the need for the sentence to reflect the seriousness of the offense, the need to protect the public by incapacitating Artis, the need 4 for deterrence, and the need to impose just punishment. district court s choice of an alternative upward The variant sentence was reasonable. In light of the district court s consideration of the parties arguments and the § 3553(a) sentencing factors, and its thorough articulation of reasons warranting the imposition of an upward variant sentence, we find no abuse of discretion in the district court s determination of the extent of the variance. United States v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming variance from zero-to-six-month Guidelines range to sixty-month sentence), cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 630 F.3d at 366-67 (affirming variance sentence six years greater than Guidelines range because sentence was based on the district court s examination of relevant § 3553(a) factors); see also United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) ( All that matters is that the sentence imposed be reasonable in relation to the package of reasons given by the court. ). Artis s sentence is reasonable. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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