United States v. Bealon , 338 F. App'x 345 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4928
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CHARLES ENNETT BEALON, JR.,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. Louise W. Flanagan,
    Chief District Judge. (7:08-cr-00038-FL-1)
    Submitted:    May 6, 2009                      Decided:    July 21, 2009
    Before TRAXLER,     Chief   Judge,   and   DUNCAN   and   AGEE,   Circuit
    Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
    Assistant Federal Public Defender, James E. Todd, Jr., Research
    and Writing Specialist, Raleigh, North Carolina, for Appellant.
    George E. B. Holding, United States Attorney, Robert J. Higdon,
    Jr., William M. Gilmore, Jennifer E. Wells, Assistant United
    States Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Charles Ennett Bealon, Jr., appeals his sentence of
    288     months’      imprisonment        for       possession      with     intent      to
    distribute more than five grams of cocaine base, in violation of
    
    21 U.S.C. § 841
    (a)(1) (2006).                  On appeal, Bealon contends that
    the     district     court’s    upward       departure      from    the     recommended
    guidelines range was unreasonable, as the recommended guidelines
    range    adequately      accounts      for     Bealon’s     criminal      history,     and
    that even if an upward departure was appropriate, Bealon’s 288
    month sentence was unreasonable.                  We affirm.
    “Regardless of whether the sentence imposed is inside
    or    outside     the   [g]uidelines      range,      the    appellate      court     must
    review     the     sentence    under     an       abuse-of-discretion       standard.”
    Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007).                            Appellate
    courts are charged with reviewing sentences for reasonableness,
    evaluating both the procedural and substantive reasonableness of
    a sentence.       
    Id. at 594, 597
    .
    In     determining     procedural         reasonableness,       we     first
    assess     whether      the    district       court    properly       calculated      the
    defendant’s advisory guidelines range.                    
    Id. at 596-97
    .       We then
    determine whether the district court failed to consider the 
    18 U.S.C. § 3553
    (a) (2006) factors and any arguments presented by
    the parties, treated the guidelines as mandatory, selected a
    sentence     based      on    “clearly    erroneous         facts,”    or    failed     to
    2
    sufficiently explain the selected sentence.                           
    Id. at 597
    ; United
    States v. Pauley, 
    511 F.3d 468
    , 473 (4th Cir. 2007).                                 Finally,
    we   review    the    substantive           reasonableness            of    the     sentence,
    “taking     into     account     the        ‘totality         of    the     circumstances,
    including     the    extent     of    any     variance         from      the     [g]uidelines
    range.’” Pauley, 
    511 F.3d at 473
     (quoting Gall, 
    128 S. Ct. at 597
    ).
    A district court may depart upward from the guidelines
    range     under      U.S.     Sentencing              Guidelines         Manual      (“USSG”)
    § 4A1.3(a)     (2007)       when      “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.”              USSG    § 4A1.3(a)(1).
    Commentary     to    the    guideline        states       that,       “[i]n       determining
    whether an upward departure from Criminal History Category VI is
    warranted,    the    court     should       consider       that      the    nature    of   the
    prior offenses rather than simply their number is often more
    indicative     of    the     seriousness          of     the       defendant’s       criminal
    record.”    USSG § 4A1.3 cmt. n.2(B).
    Here,      Bealon        does     not       challenge          the     procedural
    reasonableness of the sentence — he does not allege that the
    district    court     erred     in    its     calculation           of     the    guidelines,
    failed to adequately explain its sentence, or failed to apply
    the § 3553(a) factors.           Instead, Bealon attacks the substantive
    3
    reasonableness       of     the    sentence.              When      reviewing       substantive
    reasonableness, we “may consider the ‘extent of the deviation’
    [from the recommended guidelines range], but . . . ‘must give
    due     deference     to     the    district             court’s       decision         that   the
    § 3553(a)       factors,     as    a     whole,          justify      the     extent      of   the
    variance.’”       Pauley, 
    511 F.3d at 473-74
     (quoting Gall, 
    128 S. Ct. at 597
    ).        That we would have reached a different result in
    the     first    instance     is        insufficient            reason      to     reverse     the
    district court’s sentence.               Id. at 474.
    Upon     reviewing          the     record,          we    conclude         that   the
    district court did not abuse its discretion in sentencing Bealon
    to 288 months’ imprisonment.                  Throughout the sentencing hearing,
    the district court referenced Bealon’s lengthy criminal history.
    The   district      court    noted       that       it    had    never      seen    a    criminal
    history as extensive as Bealon’s, and characterized the history
    as “a laundry list of drug offenses and other crimes, motor
    vehicle    infractions.”           The        court      observed      that      Bealon    had   a
    criminal history point subtotal of thirty-seven, nearly three
    times     the    threshold         of     a     category         VI      criminal        history.
    Therefore, the court found that criminal history category VI
    greatly underrepresented Bealon’s significant criminal history.
    Our     independent          review          of   the     record     confirms      the
    district    court’s        assessment         of    Bealon’s          pattern      of    criminal
    behavior.         Bealon’s        extensive           criminal        history       encompasses
    4
    twenty-four        convictions       from      2000      to     2005.        Eight      of    the
    offenses are felonies, and two of them are violent crimes.                                    Both
    the nature and volume of Bealon’s offenses demonstrate a rampant
    disrespect for the law, the community at large, and the safety
    of individuals therein.
    In    formulating         the     sentence,          the      district         court
    specifically        addressed      several         of    the    § 3553(a)         factors      and
    found the guidelines sentence insufficient to adequately address
    them.     The       district       court       then      methodically         reviewed        the
    guidelines ranges for various offense levels, first for Bealon’s
    calculated     offense       level      of    thirty-one,         then      for    an   offense
    level of thirty-two, and finally for an offense level of thirty-
    three.    The court noted that the lower two levels would not
    “adequately take into consideration the factors the [c]ourt’s
    required to consider,” and would not “adequately reflect the
    seriousness        of     [Bealon’s]         past       criminal       conduct      with       the
    likelihood of recidivism.”                   Finally, the court determined that
    an   offense        level    of    thirty-three,               with    its    corresponding
    advisory guidelines range of 235 to 293 months’ imprisonment,
    would    be        sufficient      to        address       the        § 3553(a)         factors.
    Accordingly, the district court sentenced Bealon to 288 months’
    imprisonment.
    We    find    that   the       district      court      did    not    abuse     its
    discretion     in       sentencing    Bealon        to    288    months’      imprisonment.
    5
    Rather,    it    is   apparent       that       the    court    made    the    requisite
    “individualized assessment based on the facts presented,” United
    States v. Carter,             F.3d          ,         , 
    2009 WL 1110786
    , at *2, *4
    (4th Cir. Apr. 27, 2009) (No. 08-4643) (quoting Gall, 
    128 S. Ct. at 597
    ).        Therefore, 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    the   court   and    argument         would     not     aid   the   decisional
    process.
    AFFIRMED
    6
    

Document Info

Docket Number: 08-4928

Citation Numbers: 338 F. App'x 345

Judges: Agee, Duncan, Per Curiam, Traxler

Filed Date: 7/21/2009

Precedential Status: Non-Precedential

Modified Date: 8/7/2023