US v. Timothy Devine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00010-D-1,5:10-cv-00091-D Copies to all parties and the district court/agency. [999295126].. [13-4227]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4227

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY ALEXANDER DEVINE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:07-cr-00010-D-1; 5:10-cv-00091-D)

Submitted:

January 31, 2014

Decided:

February 11, 2014

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

Affirmed by unpublished per curiam opinion.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, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Timothy Alexander Devine pleaded guilty to possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2012). *

The district court sentenced Devine

to 120 months of imprisonment.

The court upwardly departed from

a Sentencing Guidelines range of 51 to 63 months to a range of
110

to

137

§ 4A1.3(a)(1)

months

under

(2012),

U.S.

based

on

Sentencing
a

Guidelines

combination

of

Manual

factors,

including “past convictions for serious and violent offenses,
numerous

probation

violations,

disciplinary

actions,

gang

involvement including [new] gang involvement while in federal
custody, and receipt of lenient treatment for prior felonious
conduct.”

In addition, the court stated that even if the upward

departure was erroneous, it would impose the same sentence as a
variance under the factors set forth in 18 U.S.C. § 3553(a)
(2012).

Devine now appeals his sentence.

For the reasons set

forth below, we affirm.

*

Devine was originally sentenced pursuant to an upward
variance and upward departure to a term of 262 months. In 2012,
Devine filed a motion to vacate his sentence under 28 U.S.C.
§ 2255 (2012) based on United States v. Simmons, 649 F.3d 237
(4th Cir. 2011).
The district court granted the motion to
vacate the sentence because, after Simmons, Devine no longer had
three qualifying felonies under 18 U.S.C. § 924(e); however, he
still had two qualifying convictions under 18 U.S.C. § 922(g).
Therefore, the new maximum sentence was 120 months.

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We review a sentence for reasonableness, applying an
abuse of discretion standard.

Gall v. United States, 552 U.S.

38,

first

46

(2007).

The

court

reviews

for

significant

procedural error, and if the sentence is free from such error,
it

then

considers

substantive

reasonableness.

Id.

at

51.

Procedural error includes improperly calculating the Sentencing
Guidelines range, treating the Guidelines range as mandatory,
failing to consider the 18 U.S.C. § 3553(a) factors, and failing
to adequately explain the selected sentence.
explain

the

sentence,

the

district

Id.

court

To adequately
must

make

an

“individualized assessment” by applying the relevant § 3553(a)
factors to the case’s specific circumstances.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).

United States v.
The individualized

assessment need not be elaborate or lengthy, but it must be
adequate

to

allow

“Substantive

meaningful

reasonableness

appellate
examines

review.
the

Id.

totality

at

330.

of

the

circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the

standards

set

forth

in

§

3553(a).”

United

States

v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Devine challenges his sentence on two grounds: (1) the
district court procedurally erred in upwardly departing because
his

criminal

history

category

did

not

underrepresent

the

seriousness of his criminal history, and the court failed to
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explain

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incrementally

why

it

chose

the

criminal

history category and offense level that it did; and (2) the
sentence is substantively unreasonable.

The Government argues

that the court should affirm the sentence because the upward
departure is proper under the Guidelines and, alternatively, the
variance sentence is reasonable.
In United States v. Evans, 526 F.3d 155, 165 (4th Cir.
2008), we explained that “[w]hen . . . a district court offers
two

or

more

deviation,

independent

an

appellate

rationales
court

for

cannot

its

hold

[sentencing]
the

sentence

unreasonable if the appellate court finds fault with just one of
these rationales.”

Affirming the sentence, we stated:

[t]he
record
provides
abundant
support
for
the
district court’s conclusion that the § 3553(a) factors
support the sentence. Accordingly, even assuming the
district court erred in applying the Guideline[s]
departure
provisions,
Evans’
sentence,
which
is
well-justified by § 3553(a) factors, is reasonable.
Id.; see also United States v. Rivera-Santana, 668 F.3d 95, 104
(4th Cir.), cert. denied, 133 S. Ct. 274 (2012) (even if the
district
guideline
“because

court

erroneously

range,
the

the

upward

departed

asserted
variance

upward

departure

from

based

on

the

error
§

the

advisory

was

harmless

3553(a)

factors

justified the sentence imposed”); United States v. Grubbs, 585
F.3d 793, 804 (4th Cir. 2009) (holding that even if the district
court erred in its departure analysis, “the resulting sentence

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is procedurally reasonable because the district court adequately
explained
variance

its

sentence

sentence,

factors”).

on

by

alternative

reference

to

grounds

the

.

The same reasoning applies here.

.

supporting
.

§

a

3553(a)

This court need

not address whether the district court properly departed under
§ 4A1.3(a)(1) because the district court explicitly stated that
it

would

apply

the

same

sentence

as

an

alternative

variance

sentence considering the § 3553(a) factors, and the variance
sentence is reasonable.
Devine has an extensive criminal history, which the
district court discussed at length when considering the upward
departure and § 3553(a) factors.

The court noted that Devine’s

criminal history was serious and violent and included, among
other things, two armed robberies that he was allowed to plead
down

on,

numerous

probation

violations,

gang

activity

and

continuing gang involvement while in prison, an abysmal prison
record

in

both

state

and

federal

custody,

and

“receipt

repeated lenient treatment for past felonious conduct.”
court

credited

rehabilitative

Devine

efforts

with

since

his

of
The

having

matured

and

made

first

sentencing,

but

found

that Devine’s criminal history and persistent participation in
gangs

demonstrated

that

a

longer

sentence

was

“incapacitate, deter, [and] provide just punishment.”

5

needed

to

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excessively

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addition
long,

to

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claiming

Devine

claims

that
that

his

sentence

the

district

was
court

substantively erred by impermissibly considering his continued
gang participation in prison and erroneously finding “a need to
deter and continued need to incapacitate.”

These arguments are

unavailing because both of these considerations by the court
speak

directly

to

three

§

3553(a)

factors.

See

18

U.S.C.

§ 3553(a)(1) (stating that court must consider the history and
characteristics

of

(stating

court

that

the

defendant);

must

18

consider

U.S.C.

the

§

need

3553(a)(2)(B)
to

deter

the

defendant); 18 U.S.C. § 3553(a)(2)(C) (stating that court must
consider the need to protect the public from further crimes of
the defendant).
The district court has broad discretion in sentencing
decisions, see Gall, 552 U.S. at 51, and based on the court’s
careful consideration of the § 3553(a) factors, we cannot say
that

the

alternative

variance

sentence

is

unreasonable.

Therefore, even if the court was incorrect in upwardly departing
under § 4A1.3(a)(1), that error would be harmless because the
variance sentence based on the § 3553(a) factors is reasonable
and thus “justifie[s] the sentence imposed.”

Rivera-Santana,

668 F.3d at 104.
We therefore affirm the sentence.
oral

argument

because

the

facts
6

and

We

legal

dispense

with

contentions

are

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adequately

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presented

in

the

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materials

before

this

court

and

argument would not aid the decisional process.

AFFIRMED

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