United States v. Clark , 246 F. App'x 834 ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4144
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    WILLIAM JOHN CLARK,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Elkins. Robert E. Maxwell, Senior
    District Judge. (2:05-cr-00044-REM)
    Submitted: August 30, 2007                 Decided:   September 6, 2007
    Before MICHAEL, KING, and SHEDD, Circuit Judges.
    Vacated and remanded by unpublished per curiam opinion.
    Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
    Virginia, for Appellant. Sharon L. Potter, United States Attorney,
    Shawn Angus Morgan, Assistant United States Attorney, Clarksburg,
    West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    William John Clark pled guilty to possession of a firearm
    by a convicted felon, 
    18 U.S.C. § 922
    (g)(1) (2000).         In sentencing
    him, the district court departed upward from criminal history
    category III to category VI under U.S. Sentencing Guidelines Manual
    § 4A1.3, p.s. (2006), and imposed a sentence of seventy-seven
    months imprisonment.   Clark appeals his sentence, arguing that the
    sentence is unreasonable because the district court failed to
    explain why category IV or V was not sufficient.      We conclude that
    the decision to depart was reasonable, but agree that the district
    court failed to explain adequately the extent of the departure.
    The court departed based on Clark’s lengthy criminal
    history, which included offenses not counted because of their age,
    several lenient sentences for serious offenses, and many charges
    disposed of through a diversionary disposition.              A departure
    sentence is reviewed for reasonableness, both with respect to the
    decision to depart and the extent of the departure.         United States
    v. Hernandez-Villanueva, 
    473 F.3d 118
    , 123 (4th Cir. 2007).           Here,
    the district court adequately stated its reasons for departing.
    However, the court failed to follow the incremental approach
    required under United States v. Rusher, 
    966 F.2d 868
    , 884 (4th Cir.
    1992).
    We    therefore   vacate   the   sentence   and    remand    for
    resentencing.    On remand, the district court should explain why
    - 2 -
    categories IV and V are inadequate. 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.
    VACATED AND REMANDED
    - 3 -
    

Document Info

Docket Number: 07-4144

Citation Numbers: 246 F. App'x 834

Judges: King, Michael, Per Curiam, Shedd

Filed Date: 9/6/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023