US v. Cenogy Joseph
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CENOGY JOSEPH, a/k/a Goddy, a/k/a Joseph Cenogy, Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, District Judge. (5:08-cr-00003-gec-bwc-1)
June 17, 2009
July 7, 2009
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich, Jr., Assistant Federal Public Defender, Christine Madeleine Spurell, Research and Writing Attorney, Charlottesville, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Jeb T. Terrien, Assistant United States Attorney, Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Cenogy Joseph pleaded guilty, pursuant to a plea
agreement, to one count of possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment, in violation of 18 U.S.C. § 922(g) (2006). district court departed upward pursuant to U.S. The
Guidelines Manual (USSG) § 4A1.3 (2007), and sentenced Joseph to sixty months of imprisonment. On appeal, Joseph argues that his sentence is
unreasonable because the factors relied on by the district court in deciding to depart upward were already taken into account by the Sentencing Guidelines. He asserts that his criminal history
category did not understate his criminal history because he had no prior sentences that were not used in computing his criminal history and had no prior sentence of more than one year; and that his likelihood of recidivism was accounted for in the
Guidelines calculations. "Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard." Gall v.
United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007). Appellate courts are charged with reviewing sentences for
reasonableness. 128 S. Ct. at 594, 597.
substantive reasonableness of a sentence. Here, reasonableness Joseph of the does not he
Id. at 597. the allege procedural that the
challenge does not
district court erred in its calculation of the Guidelines range, failed to adequately explain its sentence, or failed to apply the § 3553(a) factors. Instead, Joseph attacks the substantive
reasonableness of the sentence, contending that the recommended Guidelines range adequately accounts for his criminal history. When reviewing the substantive of the reasonableness, deviation [from this the court "may
Guidelines range], but must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Gall, 128 S. Ct. at 597. That
this court would have reached a different result in the first instance is insufficient reason to reverse the district court's sentence. Id. A district court may depart upward from the Guidelines range under USSG § 4A1.3(a) when "the defendant's criminal
history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant Commentary will to commit this other crimes." states USSG that, § 4A1.3(a)(1). determining
whether an upward departure from Criminal History Category VI is 3
prior offenses rather than simply their number is often more indicative record." of the seriousness of the defendant's criminal
USSG § 4A1.3 cmt. n.2(B).
"If the district court
decides to impose a sentence outside the Guidelines range, it must ensure that its justification supports the `degree of the variance'; thus, `a major departure should be supported by a more significant justification than a minor one.'" United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting Gall, 128 S. Ct. at 597). Our review of the record leads us to conclude that the district Joseph. court did not abuse its discretion in sentencing
Accordingly, we affirm.
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
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