US v. James Acklin, No. 13-4390 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4390 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES ARTHUR ACKLIN, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, Chief District Judge. (4:12-cr-00025-D-1) Submitted: February 21, 2014 Decided: February 27, 2014 Before GREGORY, AGEE, and WYNN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James A. Acklin appeals from the forty-six-month sentence imposed after he pleaded guilty to knowingly failing to register as required Notification (2012). Act by (SORNA), the in Sex Offender violation Registration of 18 U.S.C. and § 2250 Acklin argues that his sentence is procedurally and substantively unreasonable. Specifically, Acklin contends that the in district Sentencing court erred Guidelines acknowledging that Manual departures departing (USSG) above upward under U.S. § 4A1.3 (2012) without criminal history VI are disfavored and in imposing a sentence that relied too heavily on the number severity. of his Acklin criminal also convictions argues that instead the calculating his term of supervised release. court of their erred in We affirm the term of imprisonment portion of the sentence, vacate the portion of the judgment imposing supervised release, and remand for further consideration of the supervised release term. We review a sentence for reasonableness, applying an abuse of discretion standard. 38, 46 (2007). is inside, Gall v. United States, 552 U.S. The same standard applies whether the sentence just Guidelines range. outside, or significantly outside the United States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.) (internal citation and quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). 2 In reviewing any sentence outside the Guidelines range, the appellate court must give due deference to the sentencing court s decision because it 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 decision. United States 2011). v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. [A] major departure should be supported by a more significant justification than a minor one. The court first Gall, 552 U.S. at 50. reviews for significant procedural error, and if the sentence is free from such error, it then considers substantive reasonableness. error includes improperly calculating Id. at 51. the Procedural Guidelines range, treating the Guidelines range as mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, adequately explain the selected sentence. explain the sentence, the district and Id. failing to To adequately court 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 Substantive allow meaningful reasonableness is appellate review. determined by Id. at considering 330. the totality of the circumstances, and if the sentence is within the 3 properly-calculated Guidelines range, presumption of reasonableness. this court applies a United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). Pursuant to USSG § 4A1.3, a district court may depart upward from information an applicable indicates that Guidelines the range defendant s if reliable criminal history category substantially under-represents the seriousness of the defendant s criminal history or the defendant will commit other crimes. likelihood that the USSG § 4A1.3(a)(1), p.s. Upward departures from the highest criminal history category are appropriate [i]n the case of an egregious, serious criminal record in which even the guideline range for Criminal History Category VI is not adequate to reflect the seriousness of the defendant s criminal history. Here, the district reasons for the departure. USSG § 4A1.3, p.s., cmt. n.2(b). court explained at length its It emphasized Acklin s extensive criminal history, encompassing sixty-two convictions, several of which were serious offenses, including sexual assault, burglary and conspiracy to obtain property by false pretenses. The court observed that Acklin s criminal history was about as robust as one can find in terms of just the volume and the length, thus concluding, criminal contrary history was to Acklin s extraordinary. argument, The that court Acklin s imposed a sentence nine months above the Guidelines range after following 4 our guidance on formulating the departure. We conclude that the sentence was procedurally reasonable. Turning to the substantive reasonableness of the sentence, Acklin argues that the extent of the district court s departure substantially criminal record. overstated the seriousness of his He argues that the court neglected to consider the degree to which his admittedly extensive criminal record has diminished in the last two decades. that although majority he were had for fifty-five misdemeanor Further, Acklin contends unscored and convictions, traffic offenses, the and therefore did not merit an upward departure of approximately thirty percent. In sum, Acklin contends that the district court placed too much weight on the number of convictions instead of their severity. See United States v. Cash, 983 F.2d 558 (4th Cir. 1992) ( [T]he sentencing court should consider not only the number of prior offenses committed by a defendant but also their seriousness. ). Our review of the sentencing transcript convinces us, however, that the district court considered not just the number of Acklin s lifetime convictions but their individual severity and cumulative effect. The court departed upward from 30 to 37 months to a range of 46 to 57 months and imposed a sentence of 46 months. In imposing the sentence, the court considered all the arguments of counsel, Acklin s statement, and the 18 U.S.C. 5 § 3553(a) Acklin s factors. The explanation court at noted that guilty the also it plea considered hearing as to the circumstances surrounding his failure to register and took into account Acklin s Connecticut. prior compliance with registration in The court balanced Acklin s circumstances and the age of his many convictions with its concern whether Acklin s criminal behaviors would come to an end. The court concluded that there was a need to deter and incapacitate Acklin, and to provide just punishment, to take into account the seriousness of [Acklin s] bad. history and characteristics, the good and the Under the circumstances, we conclude that the district court s decision departure was to depart factually under § 4A1.3 supported and and its that the extent of resulting sentence was substantively reasonable. Finally, Acklin argues that the district court erred in calculating the Guidelines range for his supervised release term and in imposing a ten-year term. that we should [W]hoever is remand on the required to register The Government responds supervised under release issue [SORNA and] only. . . . knowingly fails to register or update a registration as required by [SORNA,] shall be imprisoned for up to 10 years, fined, or be sentenced to § 2250(a)(3). both a fine and imprisonment. 18 U.S.C. For offenders under 18 U.S.C. § 2250, the term of supervised release is any term of years not less than 5, or 6 life. 18 U.S.C. § 3583(k) (2012). Under USSG § 5D1.2(b)(2), the minimum supervised release term is five years, but if the sentence is a sex offense, the guideline range for a term of supervised release is five years to life. The Defendant argues, and the Government agrees, that the failure to register offense is not a sex offense; therefore, the supervised release Guidelines range does not include a maximum of life, and does not create a range of five years to life as is the case with sex offenses. The PSR indicated a supervised release Guidelines range of five years to life based on USSG § 5D1.2(b)(2) and 18 U.S.C. § 3583(k). The district court imposed a ten-year term without discussion. Subsequent to the sentencing hearing, the Department of Justice (DOJ) issued guidance and established the Government s position on supervised release terms According to conviction for § 2250(a) does for the defendants to qualify of the Government, failure not convicted states register as a memo as sex a sex SORNA offenses. (1) that offender offense under a under USSG § 5D1.2(b); and (2) the advisory supervised release range for a § 2250(a) conviction is a single point: the statutory minimum of five years. Because the district court entered judgment before the DOJ memo issued, the case may benefit from the district court reconsidering the supervised release portion of the sentence. 7 Accordingly, we affirm the term of imprisonment, vacate the portion of the sentence imposing supervised release, and remand for reconsideration in light of the DOJ s recently issued position regarding the advisory supervised release range. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 8
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