US v. Samuel Finch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00025-D-1. Copies to all parties and the district court. [999713131]. [15-4171]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4171

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAMUEL MICHAEL FINCH,
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. (5:14-cr-00025-D-1)

Submitted:

November 30, 2015

Decided:

December 7, 2015

Before KING, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD,
L.L.P.,
Raleigh,
North
Carolina,
for
Appellant.
Thomas G.
Walker,
United
States
Attorney,
Jennifer
P.
May-Parker,
C.
Michael
Anderson,
Assistant
United
States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Samuel Michael Finch pled guilty pursuant to a written plea
agreement to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g) (2012).
court

imposed

imprisonment.
procedurally

an

upward

departure

sentence

The district
of

72-months’

Finch appeals, arguing that his sentence was both
and

substantively

unreasonable.

For

the

reasons

that follow, we affirm.
We

review

a

reasonableness,
standard.

sentence

applying

imposed
a

by

a

district

deferential

court

for

abuse-of-discretion

United States v. Rivera–Santana, 668 F.3d 95, 100

(4th Cir. 2012).

The first step in our review requires us to

ensure

district

that

the

court

did

not

commit

significant

procedural error, such as improperly calculating the Sentencing
Guidelines range, failing to consider the factors listed in 18
U.S.C. § 3553(a) (2012), or failing to adequately explain the
sentence.

United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).

We

then

review
into

the

sentence

account

substantive

reasonableness,

taking

circumstances.

United States v. Strieper, 666 F.3d 288, 295

(4th Cir. 2012).

2

the

for

totality

of

the

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Finch
departing

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contends
upward

that

based

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the
on

court

an

erred

inadequate

procedurally
criminal

in

history

category because the court failed to use an incremental approach
as set forth in United States v. Rusher, 966 F.2d 868, 884–85
(4th Cir. 1992), and departed directly from a category III to
category V criminal history.

A sentencing court, however, “is

under no obligation to incant the specific language used in the
guidelines, or go through a ritualistic exercise in which it
mechanically discusses each criminal history category or offense
level it rejects en route to the category or offense level that
it

selects.”

Rivera–Santana,

quotation marks omitted).

668

F.3d

at

104

(internal

The district court observed that it

was required to proceed in incremental fashion and explicitly
rejected

Finch’s

category.
In

request

for

a

category

IV

criminal

history

As such, we discern no procedural error.

any

event,

any

procedural

error

is

harmless

if

“the

upward variance based on the § 3553(a) factors justified the
sentence imposed.”

Id. at 104.

After addressing the relevant

§ 3553(a) factors, the district court stated that, even if it
had departed in error, it would have imposed the same term of
imprisonment as a variance sentence.

Because the district court

expressly noted that it would have imposed the same sentence
under a variance, any procedural error was harmless so long as
the sentence imposed was substantively reasonable.
3

See United

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States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir.), cert.
denied, 135 S. Ct. 305, 384 (2014).
A sentencing court must “impose a sentence sufficient, but
not

greater

than

necessary,

forth in [§ 3553(a)(2)].”
whether

a

variance

whether

the

to

of

with

the

18 U.S.C. § 3553(a).

sentence

degree

comply

is

variance

reasonable,
is

set

In determining

we

supported

purposes

must

by

consider

the

court’s

justification, with a larger variance requiring more substantial
justification.

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

366 (4th Cir. 2011).

We will, however, affirm if “the § 3553(a)

factors, on the whole, justified the sentence” imposed.
367 (internal quotation marks omitted).
reached
alone

a
is

court.”

different

sentencing

insufficient

to

result

justify

Id. at

“Even if we would have
on

our

reversal

own,

of

this

the

fact

district

United States v. Pauley, 511 F.3d 468, 474 (4th Cir.

2007).
The

district

court

adequately

explained

its

sentence

by

reference to the 18 U.S.C. § 3553(a) factors, which the court
expressly considered.
804 (4th Cir. 2009).

United States v. Grubbs, 585 F.3d 793,
The court concluded that, although several

factors weighed in Finch’s favor, ultimately the seriousness of
the crime, Finch’s past criminal history, and high likelihood of
recidivism warranted a longer sentence.
such

a

sentence

was

needed

for
4

The court reasoned that

deterrence,

for

a

just

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punishment,

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to

protect

the

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community.

In

light

of

those

factors, the court found that a 72-month sentence was adequate
but

not

greater

than

necessary

to

accomplish

the

goals

of

sentencing set out in § 3553(a).
The district court considered arguments from the parties,
listened

to

addressing

Finch,

and

various

explained

§ 3553(a)

its

sentence,

factors.

specifically
Under

these

circumstances, we cannot conclude that the district court abused
its discretion, and we find that the sentence was substantively
reasonable.
Accordingly, we affirm Finch’s sentence. We dispense with
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

contentions
this

court

are
and

argument would not aid the decisional process.

AFFIRMED

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