US v. Steven Thompson
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00373-FL-1 Copies to all parties and the district court/agency. [998617934]. [10-5023]
Appeal: 10-5023
Document: 31
Date Filed: 06/23/2011
Page: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5023
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN THOMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00373-FL-1)
Submitted:
May 20, 2011
Decided:
June 23, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Steven Wayne Thompson pled guilty to health care fraud
and
was
sentenced
to
fifty-eight
months
of
imprisonment.
He
argues on appeal that the district court abused its discretion
by departing upward, by the extent of the departure, and by
failing to adequately explain the reasons for departing.
We
find no abuse of discretion and therefore affirm.
A
sentence
is
reviewed
abuse of discretion standard.
38, 51 (2007).
for
reasonableness
under
an
Gall v. United States, 552 U.S.
This review requires consideration of both the
procedural and substantive reasonableness of a sentence.
Id.
After determining whether the district court properly calculated
the defendant’s advisory Guidelines range, the appellate court
considers whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009).
Finally, the appeals court reviews the substantive
reasonableness
totality
of
of
the
the
sentence,
circumstances,
“taking
including
variation from the Guidelines range.”
into
the
account
extent
of
the
any
Gall, 552 U.S. at 51.
When reviewing a departure, we consider “whether the
sentencing
decision
to
court
acted
impose
such
reasonably
a
both
sentence
2
and
with
respect
to
its
with
respect
to
the
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Date Filed: 06/23/2011
Page: 3 of 5
extent of the divergence from the sentencing range.”
States
v.
2007).
Hernandez-Villanueva,
473
F.3d
118,
123
United
(4th
Cir.
Under U.S. Sentencing Guidelines Manual § 4A1.3(a)(1)
(2010),
“[i]f
defendant’s
reliable
criminal
information
history
indicates
category
that
substantially
the
under-
represents the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes,
an upward departure may be warranted.”
Additionally, upward
departures from the highest criminal history category, VI, are
specifically
contemplated
by
the
Guidelines.
USSG
§
4A1.3,
comment. (n.2(B)).
Here, the district court’s decision to depart upwardly
was
reasonable.
Thompson’s
The
repeated
district
and
court
numerous
found
that,
offenses
because
of
of
obtaining
prescription pain medication by fraud, an upward departure was
warranted based on an “increased risk of recidivism, [and] the
need to protect the public.”
The court stated that Thompson’s
repeated conduct evidenced by his criminal history led her to
believe that an 18 to 24 month sentence was insufficient to
prevent Thompson from returning “to doing exactly what he’s done
for just about all of his life.”
that
an
upward
departure
was
The court therefore concluded
warranted
to
account
for
the
seriousness of his criminal history and the likelihood that he
would
commit
other
crimes.
Moving
3
incrementally
down
the
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sentencing table the court found that the 57 to 71 month range,
at offense level 17, appropriately accounted for the seriousness
of
Thompson’s
committing
parties
court
criminal
other
and
history
crimes.
considering
sentenced
him
and
After
the
to
58
§
the
likelihood
hearing
3553(a)
months
factors,
him
from
argument
of
the
the
imprisonment,
district
an
upward
departure from the 18 to 24 month advisory Guidelines range.
We
conclude that the district court did not abuse its discretion in
determining that a departure was warranted.
In addition, we conclude the extent of the district
court’s departure was reasonable.
In determining the extent of
a departure under USSG § 4A1.3, the district court must use an
incremental
States v.
approach.
Dalton,
477
See
F.3d
USSG
195,
§
199
4A1.3(a)(4)(A);
(4th
Cir.
United
2007).
The
incremental approach requires the district court to refer first
to the next higher category and explain why it fails to reflect
the seriousness of the defendant’s record before considering a
higher category.
See United States v. Rusher, 966 F.2d 868, 884
(4th Cir. 1992).
The
required
departure.
by
court
USSG
Having
appropriately
§
4A1.3,
found
p.s.,
Thompson’s
employed
for
the
crafting
offense
level
methodology
an
of
upward
8
was
inadequate, the district court “mov[ed] incrementally down the
sentencing table to the next higher offense level in Criminal
4
Appeal: 10-5023
Document: 31
History
Date Filed: 06/23/2011
Category
appropriate
to
VI
the
until
case.”
it
USSG
Page: 5 of 5
[found]
a
guideline
§ 4A1.3(a)(4)(B),
range
p.s.
The
district court specifically found that offense levels 9 through
16
were
not
defendant’s
adequate
criminal
to
history
reflect
or
the
the
seriousness
likelihood
that
of
the
he
will
commit future crimes.
We conclude the district court’s decision to depart
under § 4A1.3 was factually supported and that the resulting
sentence
was
reasonable.
Moreover,
the
explained its reasons for the departure.
Thompson’s sentence.
facts
and
materials
legal
before
court
adequately
We therefore affirm
We dispense with oral argument because the
contentions
are
adequately
the
and
argument
court
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
5
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