US v. Dariel Pittman

Filing 920090702

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4753

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARIEL TYREE PITTMAN, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:07-cr-00308-D-1)

Submitted:

June 9, 2009

Decided:

July 2, 2009

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Terry F. Rose, Smithfield, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Ethan A. Ontjes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: A federal grand jury indicted Dariel Tyree Pittman for being a felon in possession of a firearm on April 25, 2007 (Count 1), in violation of 18 U.S.C. by § 922(g)(1) and (2006); and

obstructing

interstate

commerce

robbery

aiding

abetting (Count 2), in violation of 18 U.S.C. §§ 2, 1951 (2006); carrying a firearm in relation to a crime of violence and aiding and abetting (Count 3), in violation of 18 U.S.C. § 2 and 18 U.S.C.A. § 924(c)(1)(A) (West Supp. 2009); and being a felon in possession of a firearm and aiding and abetting on June 19, 2007 (Count 4), in violation of 18 U.S.C. §§ 2, 922(g)(1). Pittman

pleaded guilty to Counts 2 and 3 pursuant to a plea agreement in exchange for the Government dismissing Counts 1 and 4. The

district court sentenced Pittman to 162 months of imprisonment for Count 2 to be served consecutively with eighty-four months of imprisonment for Count 3. Pittman now appeals his sentence,

arguing that the district court erred in upwardly departing from the advisory guidelines range. This applying an court of reviews Finding no error, we affirm. a sentence for reasonableness, Gall v. United

abuse

discretion

standard.

States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007); see also United States v. Seay, 553 F.3d 732, 742 (4th Cir. 2009). In so

doing, the court first examines the sentence for "significant procedural error," including: 2 "`failing to calculate (or

improperly

calculating)

the

[g]uidelines

range,

treating

the

[g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .'" Gall, 128 S. Ct. at 597. If there

are no significant procedural errors, the court "`consider[s] the substantive reasonableness of the sentence imposed.'"

United States v. Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). Pittman argues that the district court abused its

discretion in upwardly departing from the advisory guidelines range to reflect the conduct in the dismissed charges, Counts 1 and 4. See U.S. Sentencing Guidelines Manual § 5K2.21 (2007).

In light of the facts of this case and the district court's thorough and meaningful articulation of its consideration of the 18 U.S.C. § 3553(a) (2006) factors and the bases for departure, we find the district court's decision to depart, and the extent of the departure, reasonable. Accordingly, district facts court. legal before We we affirm the sentence imposed by the the the the

dispense

with are

oral

argument

because in aid

and

contentions the court

adequately argument

presented not

materials

and

would

decisional process. AFFIRMED 3