US v. Oswald Miles, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00382-FL-1 Copies to all parties and the district court/agency. [998854388].. [11-4922]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSWALD MILES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:10-cr-00382-FL-1)
Submitted:
April 5, 2012
Decided:
May 15, 2012
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Oswald Miles, Jr., pled guilty to possession of stolen
ammunition
in
violation
of
18
U.S.C.
§ 922(j)
(2006).
The
district court departed above the Guidelines range pursuant to
U.S. Sentencing Guidelines Manual §§ 4A1.3, p.s., 5K2.21, p.s.
(Inadequate Criminal History Category; Dismissed and Uncharged
Conduct) (2010), and imposed a sentence of forty-one months’
imprisonment.
Miles
appeals
his
sentence,
arguing
that
the
district court procedurally erred in several respects in making
the departure.
We affirm.
We review a sentence for reasonableness under an abuse
of
discretion
standard,
which
substantive reasonableness.
51 (2007).
includes
both
procedural
and
Gall v. United States, 552 U.S. 38,
The same standard applies whether the sentence is
“inside, just outside, or significantly outside the Guidelines
range.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009).
The
district
court
“has
flexibility
in
fashioning
a
sentence outside of the Guidelines range,” and need only “set
forth
enough
to
satisfy
the
appellate
court
that
it
has
considered the parties’ arguments and has a reasoned basis” for
its decision.
United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir.) (citing Rita v. United States, 551 U.S. 338, 356
(2007)), cert. denied, 131 S. Ct. 2946 (2011).
2
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Guidelines § 4A1.3(a)(1) provides that, “[i]f reliable
information
indicates
that
the
defendant’s
criminal
history
category substantially 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.”
procedural
Miles contends that the district court committed
error
convictions,
set
considering
any
seriousness
of
in
departing
out
other
his
in
based
the
on
presentence
“reliable
criminal
only
report,
information”
record.
his
His
prior
without
concerning
position
is
supported by the language of § 4A1.3 or its commentary.
prior
convictions
constituted
reliable
evidence
the
not
Miles’
because
they
were “established by . . . interaction with the legal system[.]”
United
States
(holding
that
v.
Weisser,
defendant’s
417
F.3d
alleged
336,
351
sexual
(2d
Cir.
2005)
relationship
with
teenage boy as evidenced by internet chats was not “reliable
information” for § 4A1.3 departure).
The
district
court
found
that
Miles’
multiple
convictions, beginning at a young age, indicated a propensity to
further criminal conduct which was not reflected in his criminal
history category.
Moreover, the court found that other admitted
criminal conduct was not accounted for, specifically, his crimes
against the two underlying victims of his current offense.
3
We
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conclude that the court identified a sufficiently reliable basis
for the departure.
Next, Miles claims that the district court failed to
follow correctly the incremental approach set out in § 4A1.3 and
case law for departures above criminal history category VI, see
United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007),
because
the
court
moved
from
offense
level
without addressing the adequacy of level 12.
11
to
level
13
However, in Dalton
we held that “[s]ection 4A1.3’s mandate to depart incrementally
does not, of course, require a sentencing judge to move only one
level, or to explain its rejection of each and every intervening
level.”
Id. (internal quotation marks and citation omitted).
By finding that offense level 13 produced a sentencing range
that allowed a sentence that the court decided was sufficient,
but not greater than necessary to account for the seriousness of
Miles’ offense and the likelihood that he would commit future
crimes,
the
court
implicitly
rejected
offense
level
12
as
inadequate to comply with the purposes of § 3553(a).
Finally, Miles suggests that the district court failed
to
explain
departure.
adequately
its
reasons
for
the
extent
of
the
However, the sentencing judge need only “set forth
enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.”
4
Carter, 564 F.3d at 328
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(quoting Rita, 551 U.S. at 356).
We are satisfied that the
district court’s explanation for the sentence did not constitute
procedural error.
We therefore affirm the sentence.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
We dispense with
legal
before
contentions
the
Court
are
and
argument would not aid the decisional process.
AFFIRMED
5
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