United States v. Pearson , 310 F. App'x 571 ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4106
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    WILLIE JAMES PEARSON,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. James C. Fox, Senior
    District Judge. (7:07-cr-00053-F-1)
    Submitted:    December 16, 2008            Decided:   December 19, 2008
    Before WILKINSON, MICHAEL, and KING, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Slade   C.  Trabucco,   SULLIVAN,  TRABUCCO  &   WAGONER,  LLP,
    Wilmington, North Carolina, for Appellant. George E.B. Holding,
    United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
    Assistant United States Attorneys, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Willie    James     Pearson      appeals      from      his   200-month
    sentence entered pursuant to his guilty plea to possession with
    intent to distribute heroin.               Pearson asserts that the district
    court    erred      by   departing    upward     based     on    its    finding    that
    Pearson’s criminal history category inadequately reflected his
    actual criminal history.             In addition, Pearson contends that he
    received inadequate notice of the possible upward departure.                          We
    affirm.
    A defendant’s criminal history is an encouraged factor
    for an upward departure.              A court may depart upward from the
    guideline range “[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.” U.S. Sentencing Guidelines Manual § 4A1.3(a)(1), p.s.
    (2007); see also USSG § 4A1.3(a)(4)(B) (when upwardly departing
    from Category VI, the court should move incrementally down the
    sentencing table to the next highest offense level, until it
    finds an appropriate guideline range).
    Pearson asserts that the district court erred because
    (1)     the     Guidelines       already     took    into       account      his   past
    convictions and (2) many of his convictions were old.                         However,
    Pearson       had   52   convictions,      27   of   which      did    not   result   in
    2
    criminal history points. *            In addition, while many of Pearson’s
    convictions were old, Pearson’s criminal record did not show a
    significant break in criminal activity.                    During the five years
    prior to his arrest on the instant offense, Pearson had been
    convicted of assault with a deadly weapon (serving over a year
    in prison), assault to inflict serious injury, and possession of
    cocaine and marijuana.              We find that the record supports the
    court’s     upward    departure      and     that    the    court’s    decision      was
    reasonable.
    Next, Pearson alleges that he had insufficient notice
    of    the   court’s        intent    to     depart.         However,     the    notice
    requirement is satisfied if the presentence report recommends a
    departure on a particular ground.                  United States v. Bellamy, 
    264 F.3d 448
    , 455 (4th Cir. 2001).                     Here, the presentence report
    noted that the court could consider a departure based upon the
    “severity      of    the    defendant’s      past    criminal    history       and   the
    likelihood that he will commit future crimes,” and Pearson did
    not   object    to    the    lack    of    notice.      Thus,    we   conclude       that
    Pearson’s notice was sufficient.
    Accordingly,       we        affirm     Pearson’s    sentence.           We
    dispense     with     oral     argument       because      the   facts    and    legal
    *
    Further, although Pearson was found to be a career
    offender, that status did not affect his criminal history
    category, because he was already in category VI.
    3
    contentions are adequately presented in the materials before the
    court and argument would not aid the decisional process.
    AFFIRMED
    4
    

Document Info

Docket Number: 08-4106

Citation Numbers: 310 F. App'x 571

Judges: King, Michael, Per Curiam, Wilkinson

Filed Date: 12/19/2008

Precedential Status: Non-Precedential

Modified Date: 8/7/2023