US v. John Saunders, No. 09-4736 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4736 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN SAUNDERS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:09-cr-00041-HEH-2) Submitted: September 30, 2010 Decided: November 9, 2010 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. David P. Morgan, Richmond, Virginia, for Appellant. Michael Arlen Jagels, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John distribution Saunders of heroin, months incarceration. pled and guilty was to sentenced two to a counts term of of 45 Saunders appealed, and counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that in his view there are no meritorious grounds for appeal, but reasonable. questioning whether Saunders sentence was Saunders was informed of his right to file a pro se supplemental brief but has not done so. We affirm. We review Saunders sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural errors. United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008). calculate Significant procedural errors include failing to (or improperly calculating) the Guidelines range, . . . failing to consider the [18 U.S.C.] § 3553(a) factors, . . . or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51). We then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. When reviewing a sentence on appeal, we presume a sentence within the 2 properly-calculated Guideline range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Here, the district court departed upward in calculating the applicable Guideline range, on the ground that Saunders criminal seriousness of history his criminal category history. under-represented USSG § the 4A1.3(a). 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 Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). v. Under USSG § 4A1.3(a)(1), [i]f reliable information indicates that the defendant s under-represents criminal the history seriousness of category the substantially defendant s criminal history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted. We have reviewed the record and conclude that the district court s decision to depart upward was procedurally and substantively reasonable. a criminal history The record reveals that Saunders had category of VI, which did not account approximately 26 of his prior convictions. take into Saunders most recent offenses were committed only four months after he served a two-year term for violating probation. The court noted that Saunders criminal activity over the years was virtually 3 unabated, that there was a strong likelihood that it would continue upon his release, and that prior shorter terms had not effectively properly deterred concluded his criminal that an conduct. upward Thus departure the from court criminal history category VI was warranted, and proceeded to employ the proper methodology for recalculating Saunders advisory range to 41 to 51 months. In See USSG § 4A1.3(a)(4)(B). addition, reasonable. the extent only a few months offenses clearly was insufficient criminal acts. The Guidelines was the departure was As we have noted, the two-year term completed by Saunders months of insufficient to before he to committed sentencing reflect the instant him from further range deter the of 9 seriousness to of 15 his criminal history, or the likelihood that he would commit future crimes. We therefore conclude that the extent of the district court s departure was reasonable. considered the parties arguments Further, the district court and relevant § 3553(a) factors, including Saunders history and characteristics and the need for the sentence to protect the public, and reasonably imposed a sentence in the middle of the recalculated advisory range. We accordingly conclude that Saunders sentence is both procedurally and substantively reasonable. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for 4 appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Saunders in writing of his right to petition the Supreme Court of the United States for further review. If Saunders requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served motion for Counsel s motion must state that a copy thereof on Saunders. an extension Finally, of time in we deny which Saunders to file a second pro se supplemental brief and dispense with oral argument because the facts and materials legal before contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 5
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