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United States v. Phyteaf McCormick ( 2023 )


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  • USCA4 Appeal: 18-4401      Doc: 31         Filed: 04/19/2019     Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHYTEAF PHEQUAN MCCORMICK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Louise W. Flanagan, District Judge. (7:17-cr-00120-FL-1)
Submitted: March 29, 2019                                         Decided: April 19, 2019
Before DIAZ and QUATTLEBAUM, Circuit Judges, HAMILTON, 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Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 18-4401        Doc: 31        Filed: 04/19/2019    Pg: 2 of 3
PER CURIAM:
Phyteaf Phequan McCormick appeals the 90-month sentence imposed following
his guilty plea to possession of ammunition by a convicted felon, in violation of
    18 U.S.C. §§ 922
    (g)(1), 924 (2012). On appeal, McCormick argues that the district court’s
upward variant sentence—33 months above the high end of the Sentencing Guidelines
range—is substantively unreasonable. * We affirm.
In determining whether McCormick’s above-Guidelines-range sentence is
substantively reasonable, “we consider whether the sentencing court acted reasonably
both with respect to its decision to impose such a sentence and with respect to the extent
of the divergence from the sentencing range.” United States v. Washington,
    743 F.3d 938
    , 944 (4th Cir. 2014) (internal quotation marks omitted). “While a district court’s
explanation for the sentence must support the degree of the variance, it need not find
extraordinary circumstances to justify a deviation from the Guidelines.” United States v.
Spencer,
    848 F.3d 324
    , 327 (4th Cir. 2017) (citations and internal quotation marks
omitted). Because our review is ultimately for an abuse of discretion, see Gall v. United
States,
    552 U.S. 38
    , 51 (2007), “we give due deference to the district court’s decision that
the [18 U.S.C.] § 3553(a) [(2012)] factors, on a whole, justify the extent of the variance,”
United States v. Zuk,
    874 F.3d 398
    , 409 (4th Cir. 2017) (internal quotation marks
omitted).     “[E]ven [if] we might reasonably conclude that a different sentence is
*
McCormick does not contend that his Guidelines range was miscalculated.
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USCA4 Appeal: 18-4401      Doc: 31         Filed: 04/19/2019      Pg: 3 of 3
appropriate, that conclusion, standing alone, is an insufficient basis to vacate the district
court’s chosen sentence.”
    Id.
     (alterations and internal quotation marks omitted).
Our review of the record confirms that McCormick’s sentence is substantively
reasonable.   In imposing an upward variant sentence, the district court considered
McCormick’s criminal history, the offense conduct, and the need for the sentence
imposed to promote respect for the law, deter McCormick from engaging in future
criminal conduct, and protect the community.         McCormick argues that his offense
conduct and criminal history should not have been used to support the upward variance as
such factors should be principally accounted for in the Guidelines range. This assertion
is misplaced because “a fact that is taken into account in computing a Guidelines range is
not excluded from consideration when determining whether the Guideline[s] sentence
adequately serves the four purposes of § 3553(a)(2).” United States v. Bollinger,
    798 F.3d 201
    , 221 (4th Cir. 2015) (internal quotation marks omitted).
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 this court and argument would not aid the decisional process.
AFFIRMED
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