United States v. Banks , 383 F. App'x 284 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4097
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY LEE BANKS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:09-cr-00012-nkm-1)
Submitted: May 27, 2010 Decided: June 16, 2010
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, R.
Andrew Bassford, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Lee Banks pled guilty without a plea agreement
to two counts of possession of a firearm by a convicted felon,
18 U.S.C. § 922(g)(1) (2006), and was sentenced to concurrent
eighty-four-month prison terms. He now appeals his sentence,
arguing that it is unreasonable. We affirm.
I
Banks’ base offense level was 20. See U.S. Sentencing
Guidelines Manual § 2K2.1(a)(4)(A) (2009). Three levels were
subtracted for acceptance of responsibility. See USSG § 3E1.1.
Banks’ total offense level was 17, his criminal history category
was VI, and his advisory Guidelines range was 51-63 months.
There were no objections to the presentence report.
At sentencing, defense counsel argued that Banks’
psychological and physical problems, as well as the fact that he
was forty-nine and therefore statistically less likely to commit
future crimes, justified a sentence at the low end of the
Guidelines range. The United States replied that light
sentences Banks had received for past offenses had done little
to deter his criminal conduct.
In pronouncing sentence, the court stated that Banks
posed a danger to the community. The court referred to Banks’
criminal history, much of which was not included when computing
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his twenty criminal history points. Many of Banks’ past
offenses were violent. The court agreed that a person of Banks’
age ordinarily would no longer be violent; however, this was not
the case with Banks, whom the court described as “a rather
lawless and dangerous person.” The court commented that Banks
could receive needed treatment for his physical and emotional
problems while in prison. Of paramount concern to the court in
sentencing Banks was the danger of recidivism and the need to
protect the community from further crimes. This, the court
found, warranted “an upward departure of considerable months.”
The court sentenced Banks to concurrent eighty-four-
month prison terms. In imposing sentence, the court stated that
it had considered the 18 U.S.C. § 3553(a) (2006) sentencing
factors as well as the advisory Guidelines range.
II
We review a sentence for reasonableness, applying an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Seay, 553 F.3d 732,
742 (4th Cir.), cert. denied, 130 S. Ct. 127 (2009). Our
initial review is for “significant procedural error,” including
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
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erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
We next “consider the substantive reasonableness of
the sentence imposed.” Id. At this stage, we “take into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” Id. “If the
district court decides to impose a sentence outside the
Guidelines range, it must ensure that its justification supports
‘the degree of the variance.’” United States v. Evans, 526 F.3d
155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008)
(quoting Gall, 552 U.S. at 51). We give “due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 552 U.S. at
51.
Our review of the record convinces us that Banks’
variant sentence is procedurally and substantively reasonable.
The district court properly calculated the advisory Guidelines
range, considered the relevant § 3553(a) factors and the
parties’ arguments at sentencing, and sufficiently explained its
reasons for imposing the variant sentence.
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III
We accordingly affirm. 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
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