US v. Joel Arti
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:12-cr-00342-D-1 Copies to all parties and the district court/agency. [999296223].. [13-4338]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4338
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL DEVON ARTIS,
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. (5:12-cr-00342-D-1)
Submitted:
January 27, 2014
Decided:
February 12, 2014
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, 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Unpublished opinions are not binding precedent in this circuit.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:
Joel Devon Artis appeals the thirty-six-month sentence
imposed after he pled guilty, pursuant to a plea agreement, to
one count of possession with intent to distribute a quantity of
marijuana,
cocaine,
heroin,
Benzylpiperazine
Trifluoromethylphenylpiperazine
Methylenediozpyrovalerone
§ 841(a)(1) (2012).
(BZP),
(MDPPP),
(MDPV),
in
violation
and
of
21
U.S.C.
On appeal, Artis argues that the district
court erred in upwardly departing pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 4A1.3 (2012).
Specifically, Artis
argues that the court engaged in impermissible double counting
when the conduct that served as the basis for the departure was
also used to impose a three-level enhancement pursuant to USSG
§ 3C1.3
because
he
committed
the
pending sentencing in another case.
This
substantive
standard.
same
court
reviews
reasonableness
a
offense
while
on
release
We affirm.
sentence
under
an
for
abuse
procedural
of
discretion
Gall v. United States, 552 U.S. 38, 51 (2007).
standard
applies
whether
the
sentence
is
“inside,
outside, or significantly outside the Guidelines range.”
States
v.
Rivera-Santana,
668
F.3d
95,
100-01
and
The
just
United
(4th
Cir.)
(internal citation and quotation marks omitted), cert. denied,
133 S. Ct. 274 (2012).
In evaluating procedural reasonableness,
this
whether
court
considers
the
2
district
court
properly
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calculated the defendant’s advisory Guidelines range, gave the
parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) (2012) factors, selected a
sentence supported by the record, and sufficiently explained the
selected sentence.
In
range,
the
sentencing
Gall, 552 U.S. at 49-51.
reviewing
appellate
court’s
any
sentence
court
decision
must
outside
give
because
due
it
the
Guidelines
deference
has
to
“flexibility
the
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. 2011).
error,
the
court
If the sentence is free of procedural
reviews
it
for
substantive
reasonableness,
taking into account the totality of the circumstances.
Gall,
552 U.S. at 51.
Section
“reliable
4A1.3
information
authorizes
indicates
that
an
upward
the
departure
defendant’s
when
criminal
history category substantially under-represents the seriousness
of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.”
USSG § 4A1.3(a)(1), p.s.
The types of information that may support an upward departure
include “[w]hether the defendant was pending trial or sentencing
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on another charge at the time of the instant offense.”
USSG
§ 4A1.3(a)(2)(D).
“Double
counting
occurs
when
a
provision
of
the
Guidelines is applied to increase punishment on the basis of a
consideration
that
has
been
accounted
for
by
application
of
another Guideline provision or by application of a statute.”
United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).
“[T]here is a presumption that double counting is proper where
not expressly prohibited by the guidelines.”
Hampton,
628
F.3d
654,
664
(4th
Cir.
United States v.
2010).
Section
4A1.3
contains no language addressing, much less prohibiting, double
counting.
(4th
See United States v. Rivera-Santana, 668 F.3d 95, 102
Cir.
2012)
impermissibly
because
that
counting).
in
(rejecting
triple
counted
section
does
argument
in
that
departing
not
district
under
prohibit
USSG
double
or
court
§ 4A1.3
triple
We conclude that the district court did not engage
impermissible
double
counting
and
Artis’s
arguments
are
without merit.
Accordingly, we affirm Artis’s sentence.
We dispense
with oral argument because the facts and legal contentions are
adequately
presented
in
the
materials
before
this
court
and
argument would not aid the decisional process.
AFFIRMED
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