US v. Ishmael Kelly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00166-FL-1 Copies to all parties and the district court/agency. [999100234].. [12-4590]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4590

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISHMAEL SEBASTIAN KELLY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:11-cr-00166-FL-1)

Submitted:

April 29, 2013

Decided:

May 2, 2013

Before MOTZ, GREGORY, and KEENAN, 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Affirmed by unpublished per curiam opinion.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.
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Unpublished opinions are not binding precedent in this circuit.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:
Ishmael
sentence

Sebastian

imposed

Kelly

following

his

appeals

guilty

the

plea

to

thirty-month
possession

of

firearms and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006).

On appeal, Kelly argues that

the

departure

district

court’s

upward

substantively unreasonable sentence.

resulted

in

a

We reject this argument

and affirm.
We review any criminal sentence, “whether inside, just
outside,

or

significantly

reasonableness,
standard.”

“under

outside
a

the

Guidelines

deferential

range,”

for

abuse-of-discretion

United States v. King, 673 F.3d 274, 283 (4th Cir.),

cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States,
552 U.S. 38, 46, 51 (2007).
departure

or

sentencing
decision

variance

court

to

sentence,

acted

impose

When the district court imposes a
“we

reasonably

both

such

a

sentence

consider

and

whether

with

respect

to

its

with

respect

to

the

extent of the divergence from the sentencing range.”
States
2007).

v.

Hernandez-Villanueva,

The

district

court

473

“has

F.3d

the

118,

flexibility

123

in

United

(4th

Cir.

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
2

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(4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356
(2007))

(alteration

omitted),

cert.

denied,

131

S.

Ct.

2946

(2011).
Where, as here, the defendant does not challenge the
procedural reasonableness of his sentence, we review only the
substantive reasonableness of the sentence, applying the abuseof-discretion standard.

Gall, 552 U.S. at 51; United States v.

Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
court

assesses

discretion
[(2006)]

in

whether

the

determining

factors

supported

district

that

the

[the

In doing so, this

court

[18

sentence]

“abused

U.S.C.]
and

substantial deviation from the Guidelines range.”
U.S. at 56.

§

[its]
3553(a)

justified

a

Gall, 552

We must “take into account the totality of the

circumstances, including the extent of [the] variance from the
Guidelines range.”

Id. at 51.

A more significant “departure

should be supported by a more significant justification.”

Id.

at 50.
A district court may depart upward from an applicable
Guidelines range “[if] 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.”
U.S.

Sentencing

Guidelines

Manual

§ 4A1.3(a)(1),

p.s.

(2011);

see United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008)
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(nothing that an under-representative criminal history category
is an encouraged basis for departure).
departure

sentence

Guidelines

state

is
a

appropriate

court

may

in

To determine whether a
such

consider,

circumstances,
inter

the

alia,

prior

sentences not used in the criminal history calculation.

USSG

§ 4A1.3(a)(2).
The district court emphasized Kelly’s unscored state
felon-in-possession

conviction

in

upwardly

departing.

Kelly

argues that the court’s departure to Criminal History Category
IV

exaggerated

the

importance

of

this

unscored

conviction

because, had it been scored, it would only have resulted in his
placement
district

in

Criminal

court

did

History

not

Category

rely

III.

exclusively

on

However,
this

the

unscored

conviction to support the upward departure, but also considered
other unscored convictions, the fact that the unscored state
felon-in-possession conviction involved conduct similar to his
current

offense,

firearms,

the

recidivism.
mitigation

Kelly’s

danger

he

history

of

other

posed

to

the

offenses
community,

involving
and

his

The court also acknowledged Kelly’s arguments in
of

his

sentence.

We

conclude

that

the

district

court’s decision to depart from the Guidelines was permissible
and that its justification for the extent of its departure were
sufficiently compelling.

See United States v. McNeill, 598 F.3d

4

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161, 166-67 (4th Cir. 2010) (affirming upward departure under
§ 4A1.3).
Accordingly,

we

hold

the

sentence

is

substantively

reasonable and affirm the district court’s criminal judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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