United States v. Samuel Finch , 629 F. App'x 562 ( 2015 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-4171
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    SAMUEL MICHAEL FINCH,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   James C. Dever, III,
    Chief District Judge. (5:14-cr-00025-D-1)
    Submitted:   November 30, 2015            Decided:   December 7, 2015
    Before KING, AGEE, and WYNN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
    LEONARD,   L.L.P.,   Raleigh,   North   Carolina,   for   Appellant.
    Thomas G.    Walker,   United    States   Attorney,    Jennifer   P.
    May-Parker,    C.  Michael   Anderson,   Assistant   United   States
    Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Samuel Michael Finch pled guilty pursuant to a written plea
    agreement to one count of possession of a firearm by a convicted
    felon in violation of 18 U.S.C. § 922(g) (2012).                            The district
    court        imposed    an     upward     departure        sentence    of     72-months’
    imprisonment.          Finch appeals, arguing that his sentence was both
    procedurally          and    substantively         unreasonable.     For    the   reasons
    that follow, we affirm.
    We    review    a     sentence       imposed   by    a    district    court    for
    reasonableness,             applying     a     deferential        abuse-of-discretion
    standard.           United States v. Rivera–Santana, 
    668 F.3d 95
    , 100
    (4th Cir. 2012).              The first step in our review requires us to
    ensure       that     the    district     court      did    not   commit     significant
    procedural error, such as improperly calculating the Sentencing
    Guidelines range, failing to consider the factors listed in 18
    U.S.C. § 3553(a) (2012), or failing to adequately explain the
    sentence.        United States v. Carter, 
    564 F.3d 325
    , 328 (4th Cir.
    2009).           We     then     review        the     sentence      for     substantive
    reasonableness,             taking     into    account      the    totality       of   the
    circumstances.              United States v. Strieper, 
    666 F.3d 288
    , 295
    (4th Cir. 2012).
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    Finch       contends     that        the       court    erred           procedurally    in
    departing    upward        based     on     an       inadequate          criminal       history
    category because the court failed to use an incremental approach
    as set forth in United States v. Rusher, 
    966 F.2d 868
    , 884–85
    (4th Cir. 1992), and departed directly from a category III to
    category V criminal history.                A sentencing court, however, “is
    under no obligation 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.”        
    Rivera–Santana, 668 F.3d at 104
       (internal
    quotation marks omitted).             The district court observed that it
    was required to proceed in incremental fashion and explicitly
    rejected    Finch’s    request       for        a   category       IV    criminal       history
    category.    As such, we discern no procedural error.
    In    any    event,    any    procedural          error   is        harmless      if   “the
    upward variance based on the § 3553(a) factors justified the
    sentence imposed.”          
    Id. at 104.
                After addressing the relevant
    § 3553(a) factors, the district court stated that, even if it
    had departed in error, it would have imposed the same term of
    imprisonment as a variance sentence.                      Because the district court
    expressly noted that it would have imposed the same sentence
    under a variance, any procedural error was harmless so long as
    the sentence imposed was substantively reasonable.                                   See United
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    States v. Gomez-Jimenez, 
    750 F.3d 370
    , 383 (4th Cir.), cert.
    denied, 
    135 S. Ct. 305
    , 384 (2014).
    A sentencing court must “impose a sentence sufficient, but
    not    greater      than    necessary,     to    comply    with    the     purposes       set
    forth in [§ 3553(a)(2)].”                18 U.S.C. § 3553(a).            In determining
    whether      a    variance    sentence      is    reasonable,      we    must     consider
    whether      the    degree    of    variance      is   supported     by     the    court’s
    justification, with a larger variance requiring more substantial
    justification.          United States v. Diosdado–Star, 
    630 F.3d 359
    ,
    366 (4th Cir. 2011).           We will, however, affirm if “the § 3553(a)
    factors, on the whole, justified the sentence” imposed.                                
    Id. at 367
    (internal quotation marks omitted).                    “Even if we would have
    reached      a    different    sentencing        result   on   our      own,     this    fact
    alone    is       insufficient      to    justify      reversal    of      the    district
    court.”          United States v. Pauley, 
    511 F.3d 468
    , 474 (4th Cir.
    2007).
    The       district   court    adequately        explained     its    sentence       by
    reference to the 18 U.S.C. § 3553(a) factors, which the court
    expressly considered.              United States v. Grubbs, 
    585 F.3d 793
    ,
    804 (4th Cir. 2009).           The court concluded that, although several
    factors weighed in Finch’s favor, ultimately the seriousness of
    the crime, Finch’s past criminal history, and high likelihood of
    recidivism warranted a longer sentence.                   The court reasoned that
    such     a    sentence       was    needed       for    deterrence,        for     a     just
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    punishment,       to    protect    the   community.          In   light   of    those
    factors, the court found that a 72-month sentence was adequate
    but    not   greater     than     necessary      to   accomplish    the   goals    of
    sentencing set out in § 3553(a).
    The district court considered arguments from the parties,
    listened     to   Finch,    and    explained      its   sentence,     specifically
    addressing        various        § 3553(a)        factors.           Under      these
    circumstances, we cannot conclude that the district court abused
    its discretion, and we find that the sentence was substantively
    reasonable.
    Accordingly, we affirm Finch’s sentence. 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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