US v. Samuel Finch, No. 15-4171 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4171 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SAMUEL MICHAEL FINCH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, Chief District Judge. (5:14-cr-00025-D-1) Submitted: November 30, 2015 Decided: December 7, 2015 Before KING, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P., Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, C. Michael Anderson, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Samuel Michael Finch pled guilty pursuant to a written plea agreement to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) (2012). court imposed imprisonment. procedurally an upward departure sentence The district of 72-months’ Finch appeals, arguing that his sentence was both and substantively unreasonable. For the reasons that follow, we affirm. We review a reasonableness, standard. sentence applying imposed a by a district deferential court for abuse-of-discretion United States v. Rivera–Santana, 668 F.3d 95, 100 (4th Cir. 2012). The first step in our review requires us to ensure district that the court did not commit significant procedural error, such as improperly calculating the Sentencing Guidelines range, failing to consider the factors listed in 18 U.S.C. § 3553(a) (2012), or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then review into the sentence account substantive reasonableness, taking circumstances. United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). 2 the for totality of the Finch departing contends upward that based the on court an erred inadequate procedurally criminal in history category because the court failed to use an incremental approach as set forth in United States v. Rusher, 966 F.2d 868, 884–85 (4th Cir. 1992), and departed directly from a category III to category V criminal history. A sentencing court, however, “is under no obligation to incant the specific language used in the guidelines, or 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.” Rivera–Santana, quotation marks omitted). 668 F.3d at 104 (internal The district court observed that it was required to proceed in incremental fashion and explicitly rejected Finch’s category. In request for a category IV criminal history As such, we discern no procedural error. any event, any procedural error is harmless if “the upward variance based on the § 3553(a) factors justified the sentence imposed.” Id. at 104. After addressing the relevant § 3553(a) factors, the district court stated that, even if it had departed in error, it would have imposed the same term of imprisonment as a variance sentence. Because the district court expressly noted that it would have imposed the same sentence under a variance, any procedural error was harmless so long as the sentence imposed was substantively reasonable. 3 See United States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir.), cert. denied, 135 S. Ct. 305, 384 (2014). A sentencing court must “impose a sentence sufficient, but not greater than necessary, forth in [§ 3553(a)(2)].” whether a variance whether the to of with the 18 U.S.C. § 3553(a). sentence degree comply is variance reasonable, is set In determining we supported purposes must by consider the court’s justification, with a larger variance requiring more substantial justification. United States v. Diosdado–Star, 630 F.3d 359, 366 (4th Cir. 2011). We will, however, affirm if “the § 3553(a) factors, on the whole, justified the sentence” imposed. 367 (internal quotation marks omitted). reached alone a is court.” different sentencing insufficient to result justify Id. at “Even if we would have on our reversal own, of this the fact district United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007). The district court adequately explained its sentence by reference to the 18 U.S.C. § 3553(a) factors, which the court expressly considered. 804 (4th Cir. 2009). United States v. Grubbs, 585 F.3d 793, The court concluded that, although several factors weighed in Finch’s favor, ultimately the seriousness of the crime, Finch’s past criminal history, and high likelihood of recidivism warranted a longer sentence. such a sentence was needed for 4 The court reasoned that deterrence, for a just punishment, to protect the community. In light of those factors, the court found that a 72-month sentence was adequate but not greater than necessary to accomplish the goals of sentencing set out in § 3553(a). The district court considered arguments from the parties, listened to addressing Finch, and various explained § 3553(a) its sentence, factors. specifically Under these circumstances, we cannot conclude that the district court abused its discretion, and we find that the sentence was substantively reasonable. Accordingly, we affirm Finch’s sentence. We dispense with oral argument adequately because presented in the the facts and materials legal before contentions this court are and argument would not aid the decisional process. AFFIRMED 5
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