US v. Larry Steward

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00016-TDS-1. Copies to all parties and the district court/agency. [999360095].. [13-4714]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4714

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY EARL STEWARD,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00016-TDS-1)

Submitted:

May 19, 2014

Decided:

May 21, 2014

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Sean McGonigle,
Third Year Law Student, Greensboro, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry

Earl

Steward

pled

guilty

pursuant

to

a

plea

agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).
The

district

court

sentenced

Steward

to

fifty-seven

months’

imprisonment, a sentence resulting from an upward variance from
his

advisory

months’

Guidelines

imprisonment.

sentence.

range
On

of

thirty-seven

appeal,

Steward

to

forty-six

challenges

this

We affirm.
We

review

the

district

court’s

sentence,

“whether

inside, just outside, or significantly outside the Guidelines
range,”

for

reasonableness

abuse-of-discretion standard.”
38, 41, 51 (2007).

under

a

“deferential

Gall v. United States, 552 U.S.

This court first reviews for significant

procedural error, and, if the sentence is free from such error,
we then consider its substantive reasonableness.

Id. at 51.

Procedural error includes improperly calculating the Guidelines
range, treating the Guidelines range as mandatory, failing to
consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to
explain

adequately

the

selected

sentence.

Id.

Substantive

reasonableness is determined by considering the totality of the
circumstances, including the extent of any deviation from the
Guidelines range.

Id.

An upward variance is permitted where

justified by the § 3553(a) factors.
2

See id.

This court must

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give due deference to the district court’s determination that
the § 3553(a) factors justify the extent of a variance, and the
fact that this court might find a different sentence appropriate
is insufficient to justify reversal of the district court.
We
parties’

briefs

reasonable.
Guidelines
from

conclude
that

after

review

Steward’s

of

the

record

above-Guidelines

Id.

and

the

sentence

is

The district court properly calculated Steward’s
range,

Steward,

heard

treated

argument
the

from

counsel

Guidelines

and

allocution

as

advisory,

range

considered relevant § 3553(a) factors, and adequately explained
the selected sentence.
Steward’s

The court specifically explained that

above-Guidelines

sentence

was

warranted

by

multiple

§ 3553(a) factors, expressing particular concern about Steward’s
high likelihood of recidivism in light of the length and nature
of

his

criminal

history.

We

also

reject

as

without

merit

Steward’s argument that the district court gave impermissible
weight

to

assigned

portions
criminal

of

his

criminal

history

points

history
under

that
the

were

not

Guidelines.

The court properly considered the entirety of Steward’s criminal
history in imposing sentence, 18 U.S.C. § 3553(a)(1), and, in
assigning

the

greatest

Steward’s

criminal

weight

history,

did

to

concerns

not

abuse

stemming
its

from

discretion.

See United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir.
2012)

(stating

it

was

within

district
3

court’s

discretion

to

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accord

more

defendant’s

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weight
case

to

and

a

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host

decide

of

that

aggravating

the

sentence

factors

imposed

in

would

serve the § 3553 factors on the whole).
Steward’s sentence is also substantively reasonable,
considering

the

totality

of

extent of the variance.

the

circumstances,

including

the

Although the sentence is eleven months

above the high end of the Guidelines range, the district court
did

not

abuse

its

deviation

was

Steward’s

criminal

discretion

justified

by

history

in

the
and

determining

§ 3553(a)
the

need

that

factors,

for

the

such

a

including

sentence

to

protect the public, to deter Steward, and to promote respect for
the law.

See United States v. Diosdado-Star, 630 F.3d 359,

366-67 (4th Cir. 2011) (affirming substantive reasonableness of
variance
because

sentence
it

was

six

based

years
on

the

greater
district

than

Guidelines

court’s

range

examination

of

relevant § 3553(a) factors); United States v. McNeill, 598 F.3d
161, 167 (4th Cir. 2010) (affirming the district court’s upward
departure based on, among other factors, the seriousness of the
offense,

McNeill’s

extensive

criminal

history,

lack

of

work

history, and the need to deter McNeill from future crimes).
While Steward argues that the fifty-seven-month term
is greater than necessary to achieve the purposes of sentencing
in his case, we reject this argument because it essentially asks
this court to substitute its judgment for that of the district
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court.

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While this court may have weighed the § 3553(a) factors

differently had it imposed sentence in the first instance, we
defer to the district court’s decision that a fifty-seven-month
sentence achieved the purposes of sentencing in Steward’s case.
See Gall, 552 U.S. at 51 (explaining that appellate courts “must
give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify” the sentence imposed);
United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011)
(“[D]istrict
determining

courts
the

have

weight

to

extremely

broad

be

each

given

discretion
of

when

the

§ 3553(a)

court’s

judgment.

factors.”).
We

therefore

We dispense

with

contentions

are

oral

affirm

the

argument

adequately

district

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

5