US v. Jeffrey King, No. 12-4564 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4564 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JEFFREY L. KING, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. Irene C. Berger, District Judge. (1:11-cr-00271-1) Submitted: November 19, 2012 Decided: November 29, 2012 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Debra Kilgore, BURTON KILGORE & LAZENBY, PLLC, Princeton, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, John L. File, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeffrey L. King appeals his forty-eight-month sentence for distribution of hydromorphone. asserts on appeal substantively is that unreasonable The sole argument that King the because sentence the he district received court is relied upon his criminal history to impose an upward variance from the advisory Guidelines range, despite the fact that his criminal history was already factored into the Guidelines calculations. After thoroughly examining the record and the contentions of the parties, we affirm. We review a sentence for reasonableness, applying an abuse of discretion standard. United States v. Susi, 674 F.3d 278, 282 (4th Cir. 2012). Whether a sentence is substantively unreasonable in is circumstances. Cir. 2012). vary from considered light of the totality of the United States v. Worley, 685 F.3d 404, 409 (4th In reviewing whether a district court s decision to the applicable Guidelines range is substantively reasonable, we may consider the extent of the deviation [from the applicable Guidelines range], but must give due deference to the district (2006)] factors, variance. (4th court s Cir.) on decision a that whole, the justify [18 the U.S.C. § 3553(a) extent of the United States v. Diosdado-Star, 630 F.3d 359, 366 (quoting Gall v. United States, (2007)), cert. denied, 131 S. Ct. 2946 (2011). 2 552 U.S. 38, 51 The degree of the variance impacts the quantum of justification necessary to support the sentence imposed, with a significant variance requiring than a minor variance. sentence deviates Id. more substantial justification Nevertheless, [t]hat a variance significantly from the advisory Guidelines range . . . does not alone render it presumptively unreasonable. Indeed, a sentence that deviates from the Guidelines is reviewed under the same imposed sentence deferential within abuse-of-discretion the applicable standard guidelines as a range. United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.) (internal quotation marks omitted), cert. denied, No 11A1054, 12-5002, 2012 WL 2805025 (U.S. 2012). As a result, [t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Diosdado-Star, 630 F.3d at 366 (quoting Gall, 552 U.S. at 51). King upward contends variance precluded from virtue of the separately on that the factored Guidelines range. that into district basis considering fact a of the court considering § 3553(a) an factors is a defendant s criminal history by the defendant s criminal history is the calculations But King is mistaken. of the advisory To the extent that King takes umbrage with the district court s double counting of his criminal history, it is clear 3 that double counting is presumptively authorized unless expressly prohibited. United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010). points to nothing in the pertinent statutes or prohibiting the district court s course of action. King Guidelines Indeed, the plain language of § 3553(a) directs a result contrary to that urged by King, as it provides that a sentencing court must separately consider both the history and characteristics of the defendant as well as the advisory range established under the Guidelines. See 18 U.S.C. § 3553(a)(1), (4). By its plain terms, therefore, § 3553(a) contemplates an upward variance on the basis of facts that also affect the establishment of the advisory Guidelines range. Nor do we perceive any other reason to conclude that, in light of the totality of the circumstances, the court s chosen sentence was not rooted in reason. district See United States v. Evans, 526 F.3d 155, 166 (4th Cir. 2008). Under the deference that due to the district court s conclusion the § 3553(a) factors justify the extent of the variance that it chose to apply to King, we can only conclude that King s fortyeight-month sentence is substantively reasonable. See id. at 163-66. Because King has advanced no other reason why his sentence is either procedurally or substantively defective, we affirm the judgment of the district court. 4 We dispense with oral argument adequately because presented in the the facts and legal material before contentions are this and court argument will not aid the decisional process. AFFIRMED 5
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