US v. John Mitchell, No. 13-4410 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4410 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN WILLIS MITCHELL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:11-cr-00250-FL-1) Submitted: February 25, 2014 Decided: March 20, 2014 Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Cindy H. Popkin-Bradley, CINDY H. POPKIN-BRADLEY ATTORNEY AT LAW, 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 Unpublished opinions are not binding precedent in this circuit.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: John agreement, Willis to Mitchell failure to pled register guilty, as a violation of 18 U.S.C. § 2250(a) (2012). upwardly departed pursuant to from U.S. Mitchell s Sentencing without sex a plea offender, in The district court advisory Guidelines Guidelines Manual range, ( USSG ) § 4A1.3(a)(1), p.s. (2012), and sentenced Mitchell to thirty-one months imprisonment. sentence is On procedurally appeal, and Mitchell substantively argues that his unreasonable. We affirm. We review a sentence for procedural and substantive reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The same standard applies whether the sentence is inside, just outside, or significantly States v. outside Rivera-Santana, the 668 Guidelines F.3d 95, range. 100-01 United (4th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct. 274 (2012). In determining procedural reasonableness, we consider whether the district court properly calculated the 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 based on clearly erroneous facts, or failed to explain sufficiently the selected sentence. Gall, 552 U.S. at 49-51. 2 If the sentence is free of significant procedural reasonableness, error, tak[ing] we into review account it for the substantive totality of the circumstances, including the extent of any variance from the Guidelines range. Id. at 51. When a district court imposes a sentence that falls outside of the applicable Guidelines range, we consider whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to extent of the divergence from the sentencing range. Hernandez Villanueva, 473 F.3d 118, 123 the United States v. (4th Cir. 2007). In conducting this review, we 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 [us] . . . that it has considered the parties arguments and has a reasoned basis for its decision. (4th Cir. United States v. Diosdado-Star, 630 F.3d 359, 364 2011) (internal quotation marks and alterations omitted). Section reliable 4A1.3 information authorizes indicates an that upward the departure defendant s when criminal history category substantially underrepresents the seriousness of the defendant s criminal history or the likelihood that the defendant will commit other crimes. We have stated that [s]ection 3 4A1.3 USSG § 4A1.3(a)(1), p.s. was drafted in classic catch-all terms for the unusual but serious situation where the criminal history category does not adequately reflect criminal conduct or predict future criminal behavior. past United States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). Mitchell first argues that his sentence is procedurally unreasonable because the district court judge had already decided to upwardly depart from the advisory Guidelines range prior to the hearing. We, however, find no evidence that the judge was anything but fair and impartial when making her decision to upwardly depart from the advisory Guidelines range. Mitchell also argues that his sentence is procedurally unreasonable because: (1) the court primarily focused on punishing him for the underlying sex offenses rather than his failure to register; (2) the court did not provide a sufficient explanation for the extent of the upward departure; and (3) the court ignored the § 3553(a) mitigating considerations. sentencing factors, especially Because Mitchell [drew] arguments from § 3553 for a sentence different than the one ultimately imposed, he has preserved these issues for appeal. United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). We contrary find to Mitchell s contention, that court demonstrates no merit the to Mitchell s was a arguments. review primarily of the concerned First, record with punishing Mitchell for failing to register as a sex offender, as 4 it consistently noted Mitchell s repeated failure to do so. Next, we conclude that the district court s explanation for the extent of the upward departure was sufficient and reiterate that there is no requirement for the district court to go through a ritualistic exercise in which it mechanically discusses each criminal history category [or offense level] it rejects en route to the category [or offense level] that it selects. United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (internal quotation marks omitted). Finally, we conclude that the court adequately considered the § 3553(a) factors, as it specifically remarked on Mitchell s extensive arrest record, family background, health, education, substance abuse issues, financial circumstances, likelihood of recidivism, and lack of respect for the law. See 18 U.S.C. § 3553(a)(1), (2). Mitchell also contends that his sentence is substantively unreasonable because the majority of his unscored convictions were misdemeanors and he needs mental health treatment, not an upward departure. We find that Mitchell s extensive criminal the grant upward an history justified departure. Mitchell s court s unscored decision to convictions include serious offenses and ones that demonstrate Mitchell s lack of respect for authority. Moreover, the probation officer reported troubling events that did not lead to Mitchell s arrest and listed eighteen additional charges for which Mitchell was 5 never convicted. See USSG § 4A1.3(a)(2), p.s. (listing factors courts may consider when determining whether to grant upward departure). We also find that Mitchell s violent behavior toward women and his failure to register were not ancient history and, therefore, it was not unreasonable for the district court to conclude review that of Mitchell the was record likely reveals to reoffend. that the court Finally, thoroughly considered Mitchell s need for mental health treatment. the court release, ordered, that as conditions he participate management treatment and advantage of Thus, far mental from Mitchell s mental recommended available incarcerated. in of health that health ignoring Indeed, supervised and anger Mitchell programs the a take while individual circumstances of Mitchell s case, we conclude that the court carefully crafted an appropriate sentence upward departure and all. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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