US v. Larry Steward, No. 13-4714 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4714 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY EARL STEWARD, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:13-cr-00016-TDS-1) Submitted: May 19, 2014 Decided: May 21, 2014 Before WILKINSON, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Michael A. DeFranco, Assistant United States Attorney, Sean McGonigle, Third Year Law Student, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Earl Steward pled guilty pursuant to a plea agreement to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The district court sentenced Steward to fifty-seven months imprisonment, a sentence resulting from an upward variance from his advisory months Guidelines imprisonment. sentence. range On of thirty-seven appeal, Steward to forty-six challenges this We affirm. We review the district court s sentence, whether inside, just outside, or significantly outside the Guidelines range, for reasonableness abuse-of-discretion standard. 38, 41, 51 (2007). under a deferential Gall v. United States, 552 U.S. This court first reviews for significant procedural error, and, if the sentence is free from such error, we then consider its substantive reasonableness. Id. at 51. Procedural error includes improperly calculating the Guidelines range, treating the Guidelines range as mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to explain adequately the selected sentence. Id. Substantive reasonableness is determined by considering the totality of the circumstances, including the extent of any deviation from the Guidelines range. Id. An upward variance is permitted where justified by the § 3553(a) factors. 2 See id. This court must give due deference to the district court s determination that the § 3553(a) factors justify the extent of a variance, and the fact that this court might find a different sentence appropriate is insufficient to justify reversal of the district court. We parties briefs reasonable. Guidelines from conclude that after review Steward s of the record above-Guidelines Id. and the sentence is The district court properly calculated Steward s range, Steward, heard treated argument the from counsel Guidelines and allocution as advisory, range considered relevant § 3553(a) factors, and adequately explained the selected sentence. Steward s The court specifically explained that above-Guidelines sentence was warranted by multiple § 3553(a) factors, expressing particular concern about Steward s high likelihood of recidivism in light of the length and nature of his criminal history. We also reject as without merit Steward s argument that the district court gave impermissible weight to assigned portions criminal of his criminal history points history under that the were not Guidelines. The court properly considered the entirety of Steward s criminal history in imposing sentence, 18 U.S.C. § 3553(a)(1), and, in assigning the greatest Steward s criminal weight history, did to concerns not abuse stemming its from discretion. See United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (stating it was within district 3 court s discretion to accord more defendant s weight case to and a host decide of that aggravating the sentence factors imposed in would serve the § 3553 factors on the whole). Steward s sentence is also substantively reasonable, considering the totality of extent of the variance. the circumstances, including the Although the sentence is eleven months above the high end of the Guidelines range, the district court did not abuse its deviation was Steward s criminal discretion justified by history in the and determining § 3553(a) the need that factors, for the such a including sentence to protect the public, to deter Steward, and to promote respect for the law. See United States v. Diosdado-Star, 630 F.3d 359, 366-67 (4th Cir. 2011) (affirming substantive reasonableness of variance because sentence it was six based years on the greater district than Guidelines court s range examination of relevant § 3553(a) factors); United States v. McNeill, 598 F.3d 161, 167 (4th Cir. 2010) (affirming the district court s upward departure based on, among other factors, the seriousness of the offense, McNeill s extensive criminal history, lack of work history, and the need to deter McNeill from future crimes). While Steward argues that the fifty-seven-month term is greater than necessary to achieve the purposes of sentencing in his case, we reject this argument because it essentially asks this court to substitute its judgment for that of the district 4 court. While this court may have weighed the § 3553(a) factors differently had it imposed sentence in the first instance, we defer to the district court s decision that a fifty-seven-month sentence achieved the purposes of sentencing in Steward s case. See Gall, 552 U.S. at 51 (explaining that appellate courts must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the sentence imposed); United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) ( [D]istrict determining courts the have weight to extremely broad be each given discretion of when the § 3553(a) court s judgment. factors. ). We therefore We dispense with contentions are oral affirm the argument adequately district because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5

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