US v. Zechariah Switzer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cr-00120-D-1 Copies to all parties and the district court/agency. [998557047].. [10-4745]

Case: 10-4745

Document: 36

Date Filed: 03/31/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4745

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZECHARIAH SWITZER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (7:09-cr-00120-D-1)

Submitted:

March 23, 2011

Decided:

March 31, 2011

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Dennis M. Hart, Washington, D.C., for Appellant.
George E. B.
Holding, United States Attorney, Jennifer P. May-Parker, Eric
Evenson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Zechariah

Switzer

appeals

the

eighty-four-month

sentence he received following his guilty plea to use and carry
of

firearms

firearms

during

in

and

in
of,

furtherance

violation

of

18

Switzer,

the

U.S.C.

relation
a

§

district

drug

924(c)(1)
court

to,

and

possession

trafficking
(2006).

added

of

offense,

In

in

sentencing

twenty-four

months’

imprisonment to his advisory sentencing range, which was the
statutory mandatory minimum term of sixty months.
§ 924(c)(1)(A)(i);
§ 2K2.4(b)

U.S.

(2009).

Sentencing

For

the

Guidelines

following

See 18 U.S.C.

Manual

reasons,

we

(“USSG”)
reject

Switzer’s arguments on appeal and affirm.
Switzer first posits that, in sentencing him above the
Guidelines range, the court upwardly departed pursuant to USSG
§ 2K2.4

cmt.

n.2(B)

(2009),

and

relied

on

its

finding

that

Switzer committed perjury at sentencing to enhance his sentence
pursuant to USSG § 3C1.1.

In doing so, Switzer argues, the

district court failed to provide him notice of its intent to
depart,

as

required

by

Fed.

R.

Crim.

P.

32(h),

and

opportunity to respond to the factual basis for the departure.

2

the

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However, the district court specifically rejected the
proposition that it was departing upward, 1 stating on the record
Post-Booker, 2 the

that it was imposing a variance sentence.

See

district court acted within its discretion in doing so.

generally United States v. Diosdado-Star, 630 F.3d 359, 364 (4th
Cir. 2011) (explaining that, in Rita v. United States, 551 U.S.
338

(2007),

the

Supreme

Court

“recognized

that

a

sentencing

court has flexibility in fashioning a sentence outside of the
Guidelines range”).

As we clarified in United States v. Evans

[A]dherence to the advisory Guidelines departure
provisions provides one way for a district court to
fashion a reasonable sentence outside the Guidelines
range, it is not the only way.
Rather, after
calculating the correct Guidelines range, if the
district court determines that a sentence outside that
range is appropriate, it may base its sentence on the
Guidelines departure provisions or on other factors so
long as it provides adequate justification for the
deviation.
526 F.3d 155, 164 (4th Cir. 2008).

Because there simply was no

departure in this case, we reject Switzer’s argument pertaining
to the alleged improprieties in the departure procedure.
further

reject

Switzer’s

ancillary

argument

that

1

the

We
court

Switzer correctly identifies that USSG § 2K2.4(b) governed
his offense conduct and that Application Note 2(B) to that
guideline provides that, for sentences imposed pursuant to
subsection (b), “a sentence above the minimum term required by
18 U.S.C. § 924(c) . . . is an upward departure from the
guideline sentence.”
2

United States v. Booker, 543 U.S. 220 (2005).

3

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failed to make the factual findings necessary for an enhancement
pursuant to USSG § 3C1.1.
Switzer
sentence.

next

challenges

the

reasonableness

of

his

“[N]o matter what provides the basis for a deviation

from the Guidelines range[,] we review the resulting sentence
only for reasonableness.”

Evans, 526 F.3d at 164 (citing Gall

v. United States, 552 U.S. 38, 50 (2007)).
apply an abuse of discretion standard.

In doing do, we

Gall, 552 U.S. at 51;

see also United States v. Llamas, 599 F.3d 381, 387 (4th Cir.
2010).

This

review

requires

consideration

of

both

procedural and substantive reasonableness of a sentence.

the
Gall,

552 U.S. at 51.
In determining procedural reasonableness, this court
considers

whether

the

district

court

properly

calculated

the

defendant’s advisory Guidelines range, considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id.

“Regardless of whether the district court imposes an above,

below,

or

within-Guidelines

record

an

individualized

sentence,

assessment

facts of the case before it.”

it

based

must
on

place
the

on

the

particular

United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

An

extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
4

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the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’”

United States v.

Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at
356) (alterations in original), cert. denied, 131 S. Ct. 165
(2010).
Switzer

maintains

the

district

court

did

not

individually assess his case, as evidenced by its reliance on
its finding that he lied at sentencing to impose an additional
two

years

of

imprisonment.

To

be

sure,

the

court

properly

determined that Switzer’s attempt to minimize and disavow his
criminal conduct supported the variance, but it also identified
several

other

likelihood

of

sentencing
recidivism;

factors,
the

need

including:
to

impose

Switzer’s
a

sentence

sufficient to deter others from engaging in similar conduct and
to protect the public from Switzer’s crimes; and that, in terms
of

Switzer’s

personal

characteristics,

appreciate the seriousness of his conduct.

Switzer

did

not

The district court’s

explanation reflects its thorough, individualized assessment of
this case in light of the § 3553(a) factors, and was more than
adequate to support the upward variance.
Grubbs,

585

F.3d

Ҥ 3553(a)-based[]
provides

793,

805

(4th

explanation

independent

grounds

Cir.
of

for

5

See United States v.
2009)

(opining

[defendant’s]
a

variance

that

a

sentence

sentence

and

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Date Filed: 03/31/2011

Page: 6

verifies the reasonableness of the district court’s sentencing
determination”), cert. denied, 130 S. Ct. 1923 (2010).
Having determined that there is no procedural error,
we next assess the substantive reasonableness of the sentence.
This inquiry requires us to review “whether the District Judge
abused his discretion in determining that the § 3553(a) factors
supported [the sentence] and justified a substantial deviation
from the Guidelines range.”
the

court

must

“‘take

Gall, 552 U.S. at 56.

into

account

the

In doing so,

totality

of

the

circumstances, including the extent of any variance from the
United States v. Morace, 594 F.3d 340, 346

Guidelines range.’”

(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.
Ct.

307

(2010).

district

court’s

We

discern

reliance

on

no

abuse

Switzer’s

of

discretion

in

misrepresentations

the
at

sentencing and the other identified § 3553(a) factors to support
its decision to vary upward.

See Diosdado-Star, 630 F.3d at

366-67 (holding sentencing court’s decision to impose a sentence
six years longer than advisory Guidelines range was reasonable,
because court employed § 3553-based reasoning to justify the
variance).
For
judgment.
legal

these

reasons,

we

affirm

the

district

court’s

We dispense with oral argument because the facts and

contentions

are

adequately

6

presented

in

the

materials

Case: 10-4745

before

the

court

Document: 36

and

Date Filed: 03/31/2011

argument

would

not

aid

Page: 7

the

decisional

process.
AFFIRMED

7