United States v. Hardiso

374 F. App'x 427

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 19, 2010
• Docket: 094522
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4522

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEPHEN HARDISON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:08-cr-00278-BR-2)

Submitted: February 24, 2010 Decided: March 19, 2010

Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Stephen Hardison appeals the 197-month sentence

imposed after he pled guilty, pursuant to a plea agreement, to

one count of conspiracy to distribute and possess with intent to

distribute fifty grams or more of crack cocaine, 500 grams or

more of cocaine, and a quantity of marijuana, in violation of 21

U.S.C. §§ 846, 841(a)(1) (2006). We affirm.

In the presentence report (PSR), the probation officer

recommended a total offense level of twenty-seven and a criminal

history category of VI, which resulted in a sentencing range of

130 to 162 months of imprisonment. The PSR also noted that

Hardison’s extensive criminal history might warrant an upward

departure pursuant to U.S. Sentencing Guidelines Manual (USSG)

§ 4A1.3(a) (2008). Hardison did not object to the PSR.

Before sentencing, the Government filed a motion for a

downward departure pursuant to USSG § 5K1.1 based on Hardison’s

substantial assistance. At sentencing, the district court

adopted the factual findings and Guidelines calculations in the

PSR, without objection. The Government orally moved for an

upward departure on the ground that Hardison’s criminal history

category under-represented the seriousness of his past criminal

conduct and the likelihood that he would continue to commit

crimes. The district court granted the Government’s motion for

an upward departure and departed upward to offense level thirty-

2 four, which increased the sentencing range to 262 to 327 months.

The court then granted the Government’s substantial assistance

motion and departed downward to a sentence of 197 months of

imprisonment.

On appeal, Hardison first argues that the district

court imposed a procedurally unreasonable sentence by failing to

consider the factors in 18 U.S.C. § 3553(a) (2006), with the

exception of Hardison’s criminal history, which was considered

only as it related to the Government’s motion for upward

departure. This court reviews a sentence for reasonableness

under an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). This review requires appellate

consideration of both the procedural and substantive

reasonableness of a sentence. Id. After determining whether

the district court properly calculated the defendant’s advisory

Guidelines range, this court must consider whether the district

court considered the § 3553(a) factors, analyzed any arguments

presented by the parties, and sufficiently explained the

selected sentence. Id. at 49-51. “Regardless of whether the

district court imposes an above, below, or within-Guidelines

sentence, it must place on the record an ‘individualized

assessment’ based on the particular facts of the case before

it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).

3 Our review of the record leads us to conclude that the

district court did not procedurally err in its determination or

explanation of Hardison’s sentence. Hardison argued that “the

history and characteristics of the defendant,” 18 U.S.C.

§ 3553(a)(1), did not warrant an upward departure, but supported

a sentence at the statutory minimum. The district court

discussed in detail Hardison’s criminal history, the indications

that he would continue to commit crime, and the need to protect

the public from Hardison’s crimes. Although the court did not

discuss Hardison’s drug addiction or employment opportunities,

such omission was not error. The district court adequately

addressed the relevant § 3553(a) factors and explained its

sentencing determination in terms specific to Hardison.

Hardison also argues that his sentence is

substantively unreasonable because the district court based its

decision to upwardly depart on the number of his prior

convictions rather than on the seriousness of his criminal

record. This court reviews the substantive reasonableness of

the sentence, “taking into account the ‘totality of the

circumstances, including the extent of any variance from the

Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). “If the

district court decides to impose a sentence outside the

Guidelines range, it must ensure that its justification supports

4 the ‘degree of the variance’; thus, ‘a major departure should be

supported by a more significant justification than a minor

one.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.

2008) (quoting Gall, 552 U.S. at 50). This court “may consider

the extent of the deviation [from the recommended Guidelines

range], but must give due deference to the district court’s

decision that the § 3553(a) factors, as a whole, justify the

extent of the variance.” Gall, 552 U.S. at 51. That this court

would have reached a different result in the first instance is

an insufficient reason to reverse the district court’s sentence.

Id.

A district court may depart upward from the Guidelines

range under USSG § 4A1.3(a) when “the defendant’s criminal

history category substantially under-represents the seriousness

of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes.” USSG § 4A1.3(a)(1). This

court has stated that “[s]ection 4A1.3 was drafted in classic

catch-all terms for the unusual but serious situation where the

criminal history category does not adequately reflect past

criminal conduct or predict future criminal behavior.” United

States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). “In

determining whether an upward departure from Criminal History

Category VI is warranted, the court should consider that the

nature of the prior offenses rather than simply their number is

5 often more indicative of the seriousness of the defendant’s

criminal record.” USSG § 4A1.3, comment. (n.2(B)). In deciding

the extent of a departure in the case of a defendant who is

already in criminal history category VI, “the court should

structure the departure by moving incrementally down the

sentencing table to the next higher offense level in Criminal

History Category VI until it finds a guideline range appropriate

to the case.” USSG § 4A1.3(a)(4)(B).

Contrary to Hardison’s argument, the district court’s

explanation reveals that the court considered the nature of his

prior crimes in addition to their number. The PSR reveals that

Hardison has a total of twenty-eight misdemeanor and seventy

felony convictions. Seventeen of the misdemeanor and fifty-five

of the felony convictions received no criminal history points in

the Guidelines calculation. Moreover, Hardison’s criminal

history includes multiple instances in which he received a

sentence of probation that was later revoked upon his commission

of additional crimes. Finally, although the majority of

Hardison’s crimes were property-related, many of his convictions

involved breaking and entering, which presents a risk of

confrontation by the owner of the property. The district

court’s decision to depart was supported by the evidence, and

the extent of the departure was reasonable.

6 Accordingly, we affirm Hardison’s sentence. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED