US v. Kenneth Canady, No. 14-4320 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4320 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KENNETH RAY CANADY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-cr-00144-FL-1) Submitted: December 18, 2014 Decided: December 22, 2014 Before SHEDD, WYNN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Dena J. King, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Ray Canady appeals from the ninety-four-month sentence imposed pursuant to his guilty plea to possession of a firearm by a convicted felon. On appeal, Canady argues that his sentence is substantively unreasonable due to the extent of the upward departure imposed pursuant to U.S. Sentencing Guidelines Manual § 4A1.3 (2012) (under-representation of criminal history category). * We affirm. 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, 51 (2007). When the district court imposes a departure or variance sentence, we consider “whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect range.” to the extent of the divergence from the sentencing United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). The district court “has flexibility in fashioning a sentence outside of the Guidelines range,” and need * Canady argues that the upward departure was overly extensive. He does not argue that the court procedurally erred in its decision to depart or its method for determining the extent of the departure. 2 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) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (alteration omitted). Where, as here, the defendant does not challenge the procedural sentence reasonableness only for abuse-of-discretion of his substantive sentence, we standard. Gall, 552 U.S. the applying reasonableness, review the at States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). court may “[i]f depart reliable criminal upward of an applicable information indicates category substantially history seriousness from the defendant’s that 51; United A district Guidelines the defendant’s under-represents criminal range history or likelihood that the defendant will commit other crimes.” the the USSG § 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008) (noting that an under-represented criminal history category is an encouraged basis for departure). To determine whether a departure sentence is appropriate in such circumstances, the Guidelines state that a court may consider prior sentences not used in the criminal history calculation or prior conduct not resulting § 4A1.3(a)(2), p.s. 3 in a conviction. USSG Canady departure sentence criminal warrant contends history a is sentence that not more that was the too court severe, especially than suggested Guidelines range. imposed arguing violent double the or an upward that his egregious highest-end of to the However, the district court was well within its discretion to consider Canady’s numerous prior convictions that did not result in any criminal history points. Moreover, the court did not rely exclusively on these unscored convictions to support the upward departure. It also considered that Canady posed a danger to the community and had not been deterred by his previous sentences and contact with the criminal justice system. Finally, Canady was already in criminal history category VI, and the court carefully considered the intervening offense levels and explicitly concluded insufficient to meet the goals of sentencing. that they were We conclude that the extent of the district court’s departure from the Guidelines was permissible and that its justifications were sufficiently compelling. See United States v. McNeill, 598 F.3d 161, 166-67 (4th Cir. 2010) (affirming upward departure under § 4A1.3). For these reasons, we affirm. We dispense with oral argument because the facts and legal contentions are adequately 4 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5