US v. Reginald Grant
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00112-TDS-1 Copies to all parties and the district court/agency. [999410694].. [14-4062]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD GREGORY GRANT,
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-00112-TDS-1)
Submitted:
July 22, 2014
Decided:
August 6, 2014
Before KING, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin D. Porter, MORROW PORTER VERMITSKY FOWLER & TAYLOR,
PLLC, Winston-Salem, North Carolina, for Appellant.
Ripley
Rand, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following
his
guilty
plea
to
being
a
felon
in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2012), and possession of counterfeited securities, in
violation
of
sentenced
Reginald
prison,
18
which
U.S.C.
Gregory
was
seven
(2012), 1
§ 513(a)
Grant
months
to
the
district
seventy-eight
longer
than
Grant’s Guidelines range of 57-71 months.
the
court
months
high
end
in
of
In selecting this
sentence, the district court departed upward, pursuant to U.S.
Sentencing
Guidelines
Manual
(“USSG”)
§ 4A1.3(a)
(2013),
increasing Grant’s criminal history category from V to VI.
Guidelines
“[i]f
provide
reliable
criminal
history
seriousness
of
that
such
a
departure
information
indicates
category
substantially
the
defendant’s
may
that
be
the
appropriate
defendant’s
under-represents
criminal
history
or
likelihood that the defendant will commit other crimes.”
§ 4A1.3(a)(1), p.s.
The
the
the
USSG
In the alternative, the court explained
that, absent the § 4A1.3 departure, it would have imposed the
same seventy-eight-month sentence as a variance sentence, based
on its assessment of the 18 U.S.C. § 3553(a) (2012) factors.
On
appeal,
Grant
argues
that
the
district
court
committed reversible error in conducting its departure analysis.
1
Grant does not challenge his convictions on appeal.
2
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Specifically, Grant claims that the court erroneously relied on
improper facts, such as a prior parole revocation; irrelevant
facts, such as a lie Grant told to the police and Grant’s lack
of legitimate employment history; and facts already adequately
accounted
such
as
for
the
maintains
in
calculating
loss
that
amount
there
was
Grant’s
and
the
only
one
adjusted
number
of
offense
level,
victims.
permissible
basis
Grant
for
the
§ 4A1.3 upward departure — that criminal charges were pending
against him at the time he committed the underlying offense —
and advances that resentencing is warranted because the court
identified these other reasons for the departure.
this
argument,
Grant
next
complains
that
the
Building on
court
did
not
provide notice of its intent to rely on these additional bases
for the departure.
For the following reasons, we conclude that neither
argument has merit.
Accordingly, we affirm the judgment.
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.
2012); see Gall v. United States, 552 U.S. 38, 46, 51 (2007).
When
the
sentence,
district
this
court
court
imposes
considers
a
departure
“whether
the
or
variance
sentencing
court
acted reasonably both with respect to its decision to impose
3
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such a sentence and with respect to the extent of the divergence
from
the
sentencing
range.”
United
States
v.
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
Hernandez-
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.
States
v.
(quoting
Diosdado-Star,
Rita
v.
United
630
F.3d
States,
359,
551
364
(4th
United
Cir.
2011)
U.S.
338,
356
(2007))
that
its
decision
(alteration omitted).
Here,
the
court
explained
to
upwardly depart from criminal history category V to category VI
was appropriate because Grant’s history of theft and forgery,
coupled
with
his
undeterred
recidivism,
established
that
criminal history category V underrepresented the likelihood that
Grant would reoffend.
On this point, the court emphasized that
Grant committed these crimes despite the fact that other charges
were pending against him, as well as Grant’s parole revocation,
recurrent avoidance of supervision, and bail jumping.
On appeal, Grant maintains that the court erred in
predicating its departure decision on these facts, as well as
his
false
statement
underlying offense.
to
the
police
and
the
nature
of
the
But Grant’s historical failure to abide by
the terms of his supervision, be it probation or parole, was
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plainly relevant to his likelihood to recidivate, which was at
the heart of the § 4A1.3(a)(1) departure.
See United States v.
Lucas, 542 F. App’x 283, 288 (4th Cir. 2013) (unpublished after
argument) (upholding as reasonable § 4A1.3 departure based, in
part,
on
(2014).
parole
violations),
cert.
denied,
134
S.
Ct.
1349
We further note that Grant’s ready willingness to tell
the police an elaborate lie, despite being caught red-handed,
was similarly germane to this issue.
Next,
expressed
Grant
its
is
concern
correct
about
the
in
that
the
nature
and
district
scope
court
of
his
fraudulent activities prior to resolving the departure issue.
But we cannot agree that these statements brought the court’s
departure
analysis
outside
the
purview
of
§ 4A1.3.
To
the
contrary, the record reflects that these statements, which bookended the departure analysis, simply provided context for the
court’s overarching conclusion that a within-Guidelines sentence
was
insufficient
in
this
case.
The
court’s
subsequent
alternative variance analysis makes this abundantly clear. 2
Thus, we conclude that the articulated basis for the
departure
in
this
case
was
proper.
The
court
rooted
its
departure decision in policy concerns taken directly from USSG
§ 4A1.3 and its commentary — particularly, that Grant committed
2
This alternative analysis is not challenged on appeal.
5
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the underlying offense while felony forgery charges were pending
against
him.
The
record
demonstrates
that
the
court
was
primarily concerned with deterrence, as Grant’s criminal record
evidenced that he was unwilling to conform his conduct to the
law or avail himself of the leniency previously afforded him.
We
thus
affirm
this
departure
sentence
as
reasonable.
See
United States v. Myers, 589 F.3d 117, 125-26 (4th Cir. 2009)
(affirming reasonableness of § 4A1.3 upward departure based on
totality of defendant’s “past criminal conduct and threat of
recidivism,” which was evident in lack of rehabilitation despite
prior period of incarceration).
Our
eschewal
of
Grant’s
our rejection of his second.
first
argument
necessitates
Simply put, there was no “other”
basis for the court’s departure decision, and thus no further
notice was necessary.
For these reasons, we affirm the 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
6
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