US v. Reginald Grant, No. 14-4062 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4062 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. REGINALD GREGORY GRANT, Defendant -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-00112-TDS-1) Submitted: July 22, 2014 Decided: August 6, 2014 Before KING, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR, PLLC, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012), and possession of counterfeited securities, in violation of sentenced Reginald prison, 18 which U.S.C. Gregory was seven (2012), 1 § 513(a) Grant months to the district seventy-eight longer than Grant s Guidelines range of 57-71 months. the court months high end in of In selecting this sentence, the district court departed upward, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.3(a) (2013), increasing Grant s criminal history category from V to VI. Guidelines [i]f provide reliable criminal history seriousness of that such a departure information indicates category substantially the defendant s may that be the appropriate defendant s under-represents criminal history or likelihood that the defendant will commit other crimes. § 4A1.3(a)(1), p.s. The the the USSG In the alternative, the court explained that, absent the § 4A1.3 departure, it would have imposed the same seventy-eight-month sentence as a variance sentence, based on its assessment of the 18 U.S.C. § 3553(a) (2012) factors. On appeal, Grant argues that the district court committed reversible error in conducting its departure analysis. 1 Grant does not challenge his convictions on appeal. 2 Specifically, Grant claims that the court erroneously relied on improper facts, such as a prior parole revocation; irrelevant facts, such as a lie Grant told to the police and Grant s lack of legitimate employment history; and facts already adequately accounted such as for the maintains in calculating loss that amount there was Grant s and the only one adjusted number of offense level, victims. permissible basis Grant for the § 4A1.3 upward departure that criminal charges were pending against him at the time he committed the underlying offense and advances that resentencing is warranted because the court identified these other reasons for the departure. this argument, Grant next complains that the Building on court did not provide notice of its intent to rely on these additional bases for the departure. For the following reasons, we conclude that neither argument has merit. Accordingly, we affirm the judgment. We review any criminal sentence, whether inside, just outside, or significantly reasonableness, standard. under outside a the Guidelines deferential range, for abuse-of-discretion United States v. King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United States, 552 U.S. 38, 46, 51 (2007). When the sentence, district this court court imposes considers a departure whether the or variance sentencing court acted reasonably both with respect to its decision to impose 3 such a sentence and with respect to the extent of the divergence from the sentencing range. United States v. Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Hernandez- The district court 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. States v. (quoting Diosdado-Star, Rita v. United 630 F.3d States, 359, 551 364 (4th United Cir. 2011) U.S. 338, 356 (2007)) that its decision (alteration omitted). Here, the court explained to upwardly depart from criminal history category V to category VI was appropriate because Grant s history of theft and forgery, coupled with his undeterred recidivism, established that criminal history category V underrepresented the likelihood that Grant would reoffend. On this point, the court emphasized that Grant committed these crimes despite the fact that other charges were pending against him, as well as Grant s parole revocation, recurrent avoidance of supervision, and bail jumping. On appeal, Grant maintains that the court erred in predicating its departure decision on these facts, as well as his false statement underlying offense. to the police and the nature of the But Grant s historical failure to abide by the terms of his supervision, be it probation or parole, was 4 plainly relevant to his likelihood to recidivate, which was at the heart of the § 4A1.3(a)(1) departure. See United States v. Lucas, 542 F. App x 283, 288 (4th Cir. 2013) (unpublished after argument) (upholding as reasonable § 4A1.3 departure based, in part, on (2014). parole violations), cert. denied, 134 S. Ct. 1349 We further note that Grant s ready willingness to tell the police an elaborate lie, despite being caught red-handed, was similarly germane to this issue. Next, expressed Grant its is concern correct about the in that the district nature and scope court of his fraudulent activities prior to resolving the departure issue. But we cannot agree that these statements brought the court s departure analysis outside the purview of § 4A1.3. To the contrary, the record reflects that these statements, which bookended the departure analysis, simply provided context for the court s overarching conclusion that a within-Guidelines sentence was insufficient in this case. The court s subsequent alternative variance analysis makes this abundantly clear. 2 Thus, we conclude that the articulated basis for the departure in this case was proper. The court rooted its departure decision in policy concerns taken directly from USSG § 4A1.3 and its commentary particularly, that Grant committed 2 This alternative analysis is not challenged on appeal. 5 the underlying offense while felony forgery charges were pending against him. The record demonstrates that the court was primarily concerned with deterrence, as Grant s criminal record evidenced that he was unwilling to conform his conduct to the law or avail himself of the leniency previously afforded him. We thus affirm this departure sentence as reasonable. See United States v. Myers, 589 F.3d 117, 125-26 (4th Cir. 2009) (affirming reasonableness of § 4A1.3 upward departure based on totality of defendant s past criminal conduct and threat of recidivism, which was evident in lack of rehabilitation despite prior period of incarceration). Our eschewal of Grant s our rejection of his second. first argument necessitates Simply put, there was no other basis for the court s departure decision, and thus no further notice was necessary. For these reasons, we affirm the criminal 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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