United States v. Antonio McArthur ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO RASHAWN MCARTHUR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cr-00396-D-1)
Submitted: January 28, 2019 Decided: February 1, 2019
Before DIAZ and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Nicholas J. Regalia, Assistant
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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Rashawn McArthur appeals his 56-month sentence for possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). He contends that the
district court abused its discretion in departing upward for inadequacy of criminal history
category. See U.S. Sentencing Guidelines Manual § 4A1.3(a), p.s. (2016). We affirm.
In determining whether a district court properly applied the Sentencing Guidelines,
we review a district court’s factual findings for clear error. United States v. Oceanic Illsabe
Ltd., 889 F.3d 178, 194 (4th Cir. 2018). “We ‘review all sentences—whether inside, just
outside, or significantly outside the Guidelines range—under a deferential abuse-of-
discretion standard.’” United States v. Blue, 877 F.3d 513, 517 (4th Cir. 2017) (quoting
Gall v. United States, 552 U.S. 38, 41 (2007)). “We must defer to the district court and
affirm a reasonable sentence, even if we would have imposed something different.” United
States v. Bolton, 858 F.3d 905, 915 (4th Cir. 2017) (internal quotation marks omitted).
“When reviewing a departure, 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. Howard, 773 F.3d
519, 529 (4th Cir. 2014) (internal quotation marks omitted). “An upward departure may
be warranted if ‘reliable information indicates that the defendant’s criminal history
category significantly underrepresents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.’” Id. (quoting USSG
§ 4A1.3(a)(1), p.s.). In addition, a “district court may base an upward departure . . . on a
defendant’s prior convictions, even if those convictions are too old to be counted in the
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calculation of the Guidelines range.” Howard, 773 F.3d at 529. Appropriate information
on which to base the departure may include “[p]rior sentence(s) not used in computing the
criminal history category,” “[p]rior sentence(s) of substantially more than one year
imposed as a result of independent crimes committed on different occasions,” and “[p]rior
similar adult criminal conduct not resulting in a criminal conviction.” USSG
§ 4A1.3(a)(2)(A), (B), (E), p.s.
Here, we conclude that the district court did not clearly err in finding that McArthur
had participated in an assault on another inmate while in pretrial detention, and the court
properly relied on McArthur’s participation in the assault as well as his numerous unscored
prior felony convictions and strong likelihood of recidivism to justify departing upward
four criminal history levels. Insofar as McArthur contends that the district court
improperly double counted his assault in denying a reduction for acceptance of
responsibility and also departing upward, “double counting is permissible under the
guidelines except where it is expressly prohibited.” United States v. Crawford, 18 F.3d
1173, 1179 (4th Cir. 1994) (internal quotation marks omitted).
To the extent McArthur complains that the district court did not consider the
intervening criminal history category levels, a district court is not required to “incant the
specific language used in the guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category [or offense level] it rejects en route
to the category [or offense level] that it selects.” United States v. Dalton, 477 F.3d 195,
199 (4th Cir. 2007).
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We conclude that the district court did not abuse its discretion in ruling that an
upward departure from criminal history category II to VI was warranted in this case.
Accordingly, we affirm the judgment of the district court. 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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