United States v. Justin Oxendine

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 23, 2020
• Docket: 19-4380
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4380

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUSTIN MICHAEL OXENDINE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:18-cr-00448-FL-1)

Submitted: February 14, 2020 Decided: March 23, 2020

Before HARRIS and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Justin Michael Oxendine appeals his 46-month prison sentence after pleading guilty

to making a bomb threat by telephone in violation of 18 U.S.C. § 844(e) (2018). On appeal,

he contends that the district court abused its discretion by upwardly departing two levels

under U.S. Sentencing Guidelines Manual § 2A6.1 cmt. n.4(B)(iv) for multiple victims

after applying a four-level enhancement under USSG § 2A6.1(b)(4). We affirm.

“As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks omitted). We

first ensure that the district court committed no significant procedural error “such as failing

to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence—including

an explanation for any deviation from the Guidelines range.” Gall v. United States, 552

U.S. 38, 51 (2007). If a sentence is procedurally reasonable, we consider its substantive

reasonableness, “tak[ing] into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Id.

If the sentence is outside the Guidelines range, we “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Id. “[A] major departure should be

supported by a more significant justification than a minor one.” Id. at 50. “In reviewing a

departure from the advisory Guidelines range, we ‘defer to the trial court and can reverse

2 a sentence only if it is unreasonable, even if the sentence would not have been [our]

choice.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (citation omitted).

“Because the circumstances surrounding threats vary substantially, § 2A6.1 gives

district courts latitude to depart from the Guidelines.” United States v. Spencer, 848 F.3d

324, 327-28 (4th Cir. 2017). “Given the dearth of guidance for capturing the seriousness

of such a factually variable offense, the considerations underlying a departure in a threats

case converge with those underlying a variance to an unusual degree.” Id. An upward

departure under § 2A6.1 may be warranted for multiple victims. See USSG § 2A6.1 cmt.

n.4(B)(iv); cf. United States v. Stokes, 347 F.3d 103, 105-06 (4th Cir. 2003).

We have reviewed the record and conclude that the district court did not err or abuse

its discretion in upwardly departing under USSG § 2A6.1 cmt. n.4(B)(iv) and Oxendine’s

sentence is procedurally and substantively reasonable. While the court applied a four-level

increase under USSG § 2A6.1(b)(4) for substantial disruption of public, governmental, or

business functions or services, and/or a substantial expenditure of funds to respond to the

offense, it reasonably determined a two-level departure for multiple victims was warranted

“in view of the multitude of people and businesses, individuals that were profoundly

affected by [Oxendine’s] actions,” and his Guidelines range of 30 to 37 months did not

take that factor “into consideration fully.” Alternatively, the court explained it would have

reached the same range by departing under USSG § 4A1.3(a), and a 46-month sentence

was also necessary to accomplish the purposes of sentencing under 18 U.S.C. § 3553(a).

3 Accordingly, we affirm the district court’s judgment. 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