US v. Markeith Hart, No. 15-4206 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4206 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARKEITH HART, a/k/a Scrap, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:14-cr-00207-F-1) Submitted: December 17, 2015 Decided: December 21, 2015 Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C. WHITE, P.C., Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Markeith Hart appeals from the 87-month sentence imposed after he pleaded guilty to possession of an unregistered National Firearms Act weapon, in violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (2012). The district court departed upward based on U.S. Sentencing Guidelines Manual §§ 4A1.3, 5K2.21 (2014), concluding that dismissed underrepresented criminal conduct history and a supported substantially the departure. Finding no error, we affirm. We review deferential a sentence for abuse-of-discretion reasonableness, standard.” Gall applying v. “a United States, 552 U.S. 38, 41 (2007); United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). upward whether United departure at the court States v. Because Hart did not object to the sentencing, procedurally Olano, 507 we review erred U.S. in 725, for plain departing 732 error upward. (1993); United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). * Hart argues that the court did not explain why criminal history category IV substantially * underrepresented the Hart requested a sentence at the low end of the Guidelines range established after the upward departure applied. While this preserved a challenge to the substantive reasonableness of the sentence, the court’s determination that Hart qualified for an upward departure was unchallenged in the objections to the presentence report and at sentencing. See Lynn, 592 F.3d at 578. 2 seriousness of his criminal history or the likelihood that he would commit other crimes. He further contends that his prior convictions had already been counted in determining his criminal history category § 5K2.21 and and that the were impermissibly district court considered did not under identify any additional conduct that supported application of § 5K2.21. When reviewing considers whether a the variance or sentencing court departure, acted this court reasonably both with respect to its decision to impose such a sentence and with respect to range. United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010). An information category the extent upward indicates criminal the departure significantly defendant’s of that divergence may the be warranted defendant’s underrepresents history from or the defendant will commit other crimes.” the the sentencing if “reliable criminal seriousness likelihood history of that USSG § 4A1.3(a)(1). the the A district court may base an upward departure pursuant to § 4A1.3 on a defendant’s prior convictions, even if those convictions are too old or otherwise not counted in the calculation of the Sentencing Guidelines range. See USSG § 4A1.3(a)(2). When the district court applied an upward departure in part under USSG § 5K2.21, it permissibly relied on the nature and seriousness of the dismissed count of felon in possession of a firearm. Reviewed as a whole, this record supports the court’s 3 consideration of the dismissed count and reveals that no conduct or criminal history was impermissibly double-counted. the court departing gave upward criminal history. an adequate based on explanation the of its Further, reasons underrepresentation of for Hart’s Thus, no error, plain or otherwise, resulted. Accordingly, we affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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