United States v. Reginald Grant , 581 F. App'x 210 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD GREGORY GRANT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00112-TDS-1)
Submitted: July 22, 2014 Decided: August 6, 2014
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR,
PLLC, Winston-Salem, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2012), and possession of counterfeited securities, in
violation of 18 U.S.C. § 513(a) (2012), 1 the district court
sentenced Reginald Gregory Grant to seventy-eight months in
prison, which was seven months longer than the high end of
Grant’s Guidelines range of 57-71 months. In selecting this
sentence, the district court departed upward, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 4A1.3(a) (2013),
increasing Grant’s criminal history category from V to VI. The
Guidelines provide that such a departure may be appropriate
“[i]f reliable information indicates that 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), p.s. In the alternative, the court explained
that, absent the § 4A1.3 departure, it would have imposed the
same seventy-eight-month sentence as a variance sentence, based
on its assessment of the 18 U.S.C. § 3553(a) (2012) factors.
On appeal, Grant argues that the district court
committed reversible error in conducting its departure analysis.
1
Grant does not challenge his convictions on appeal.
2
Specifically, Grant claims that the court erroneously relied on
improper facts, such as a prior parole revocation; irrelevant
facts, such as a lie Grant told to the police and Grant’s lack
of legitimate employment history; and facts already adequately
accounted for in calculating Grant’s adjusted offense level,
such as the loss amount and the number of victims. Grant
maintains that there was only one permissible basis for the
§ 4A1.3 upward departure — that criminal charges were pending
against him at the time he committed the underlying offense —
and advances that resentencing is warranted because the court
identified these other reasons for the departure. Building on
this argument, Grant next complains that the court did not
provide notice of its intent to rely on these additional bases
for the departure.
For the following reasons, we conclude that neither
argument has merit. Accordingly, we affirm the judgment.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States, 552 U.S. 38, 46, 51 (2007).
When the district court imposes a departure or variance
sentence, this court considers “whether the sentencing court
acted reasonably both with respect to its decision to impose
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such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v. Hernandez-
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). The district
court “has flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “‘set forth enough to satisfy
the appellate court that it has considered the parties’
arguments and has a reasoned basis’” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007))
(alteration omitted).
Here, the court explained that its decision to
upwardly depart from criminal history category V to category VI
was appropriate because Grant’s history of theft and forgery,
coupled with his undeterred recidivism, established that
criminal history category V underrepresented the likelihood that
Grant would reoffend. On this point, the court emphasized that
Grant committed these crimes despite the fact that other charges
were pending against him, as well as Grant’s parole revocation,
recurrent avoidance of supervision, and bail jumping.
On appeal, Grant maintains that the court erred in
predicating its departure decision on these facts, as well as
his false statement to the police and the nature of the
underlying offense. But Grant’s historical failure to abide by
the terms of his supervision, be it probation or parole, was
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plainly relevant to his likelihood to recidivate, which was at
the heart of the § 4A1.3(a)(1) departure. See United States v.
Lucas, 542 F. App’x 283, 288 (4th Cir. 2013) (unpublished after
argument) (upholding as reasonable § 4A1.3 departure based, in
part, on parole violations), cert. denied, 134 S. Ct. 1349(2014). We further note that Grant’s ready willingness to tell
the police an elaborate lie, despite being caught red-handed,
was similarly germane to this issue.
Next, Grant is correct in that the district court
expressed its concern about the nature and scope of his
fraudulent activities prior to resolving the departure issue.
But we cannot agree that these statements brought the court’s
departure analysis outside the purview of § 4A1.3. To the
contrary, the record reflects that these statements, which book-
ended the departure analysis, simply provided context for the
court’s overarching conclusion that a within-Guidelines sentence
was insufficient in this case. The court’s subsequent
alternative variance analysis makes this abundantly clear. 2
Thus, we conclude that the articulated basis for the
departure in this case was proper. The court rooted its
departure decision in policy concerns taken directly from USSG
§ 4A1.3 and its commentary — particularly, that Grant committed
2
This alternative analysis is not challenged on appeal.
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the underlying offense while felony forgery charges were pending
against him. The record demonstrates that the court was
primarily concerned with deterrence, as Grant’s criminal record
evidenced that he was unwilling to conform his conduct to the
law or avail himself of the leniency previously afforded him.
We thus affirm this departure sentence as reasonable. See
United States v. Myers, 589 F.3d 117, 125-26 (4th Cir. 2009)
(affirming reasonableness of § 4A1.3 upward departure based on
totality of defendant’s “past criminal conduct and threat of
recidivism,” which was evident in lack of rehabilitation despite
prior period of incarceration).
Our eschewal of Grant’s first argument necessitates
our rejection of his second. Simply put, there was no “other”
basis for the court’s departure decision, and thus no further
notice was necessary.
For these reasons, we affirm the criminal judgment.
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
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