United States v. Sammons , 407 F. App'x 724 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4936
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN LEON SAMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:08-cr-00014-jpj-pms-1)
Submitted: October 29, 2010 Decided: January 7, 2011
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael L. Dennis, GALUMBECK, DENNIS & KEGLEY, Tazewell,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Leon Sammons pled guilty to five counts of
interstate transmission of threats to injure another person, 18
U.S.C. § 845(c) (2006). In sentencing him, the district court
varied above the guideline range of 18-24 months and imposed a
sentence of forty-eight months. Sammons appeals his sentence,
arguing that the district court failed to adequately address the
sentencing factors set out in 18 U.S.C. § 3553(a) (2006), and
that the sentence was substantively unreasonable. We affirm.
Sentences are reviewed 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). The reviewing
court first examines the sentence 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 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.
With respect to the explanation of the sentence, this
court has stated, “Regardless of whether the district court
imposes an above, below, or within-Guidelines sentence, it must
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place on the record an individualized assessment based on the
particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). If this court concludes that a sentence is
procedurally reasonable, the court then “consider[s] the
substantive reasonableness of the sentence imposed.” United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (citing Gall,
552 U.S. at 51). Because Sammons drew on some § 3553(a) factors
to argue “for a sentence different from the one ultimately
imposed,” he preserved the claim he raises here for appeal.
Lynn, 592 F.3d at 578.
Sammons first argues that the district court failed to
consider the nature and circumstances of the offense, as well as
his history and characteristics, and the need for his sentence
to afford adequate deterrence to future criminal conduct and to
protect the public. He further argues that the court failed to
consider other kinds of sentences, such as probation or home
electronic monitoring. Last, Sammons maintains that the court
failed to explain adequately the reasons for the variance.
We are not persuaded by Sammons’ claims. While the
district court did not address all the § 3553(a) factors at
sentencing, it discussed several factors that it deemed most
relevant, and explained the variance adequately. The court
focused on Sammons’ history and characteristics, see
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§ 3553(a)(1), as shown in the materials submitted to the court,
and “his conduct [in] earlier proceedings in the case.” The
court stated that Sammons’ mental state prevented him from
appreciating the seriousness of his conduct, made it difficult
for him to control his conduct at times, and suggested that he
might be dangerous to others. The court concluded that the need
to provide adequate deterrence to criminal conduct,
§ 3553(a)(2)(B), and the need to protect the public from further
crimes by Sammons, § 3553(a)(2)(C), necessitated a variance.
Finally, the court did not abuse its discretion in
varying above the guideline range for the reasons it stated.
The evidence before the court suggested strongly that Sammons
was likely to communicate threats to others in the future.
Giving due deference to the court’s perception that a longer
sentence was needed to protect the public from future crimes by
Sammons, see Gall, 552 U.S. at 51, we conclude that the court
did not abuse its discretion in varying upward to a sentence of
forty-eight months and that the sentence was not substantively
unreasonable.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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