US v. Markeith Hart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00207-F-1. Copies to all parties and the district court/agency. [999722120]. [15-4206]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4206

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARKEITH HART, a/k/a Scrap,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:14-cr-00207-F-1)

Submitted:

December 17, 2015

Decided:

December 21, 2015

Before DIAZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James C. White, Michelle M. Walker, LAW OFFICE OF JAMES C.
WHITE, P.C., Chapel Hill, North Carolina, for Appellant.
Thomas G.
Walker,
United
States
Attorney,
Jennifer
P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Markeith Hart appeals from the 87-month sentence imposed
after

he

pleaded

guilty

to

possession

of

an

unregistered

National Firearms Act weapon, in violation of 26 U.S.C. §§ 5841,
5861(d), 5871 (2012).

The district court departed upward based

on U.S. Sentencing Guidelines Manual §§ 4A1.3, 5K2.21 (2014),
concluding

that

dismissed

underrepresented

criminal

conduct

history

and

a

supported

substantially
the

departure.

Finding no error, we affirm.
We

review

deferential

a

sentence

for

abuse-of-discretion

reasonableness,
standard.”

Gall

applying
v.

“a

United

States, 552 U.S. 38, 41 (2007); United States v. Lymas, 781 F.3d
106, 111 (4th Cir. 2015).
upward
whether
United

departure

at

the

court

States

v.

Because Hart did not object to the

sentencing,
procedurally

Olano,

507

we

review

erred

U.S.

in

725,

for

plain

departing
732

error
upward.

(1993);

United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). *
Hart argues that the court did not explain why criminal
history

category

IV

substantially

*

underrepresented

the

Hart requested a sentence at the low end of the Guidelines
range established after the upward departure applied.
While
this preserved a challenge to the substantive reasonableness of
the sentence, the court’s determination that Hart qualified for
an upward departure was unchallenged in the objections to the
presentence report and at sentencing.
See Lynn, 592 F.3d at
578.

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seriousness of his criminal history or the likelihood that he
would commit other crimes.

He further contends that his prior

convictions had already been counted in determining his criminal
history

category

§ 5K2.21

and

and

that

the

were

impermissibly

district

court

considered

did

not

under

identify

any

additional conduct that supported application of § 5K2.21.
When

reviewing

considers

whether

a

the

variance

or

sentencing

court

departure,
acted

this

court

reasonably

both

with respect to its decision to impose such a sentence and with
respect

to

range.

United States v. McNeill, 598 F.3d 161, 166 (4th Cir.

2010).

An

information
category

the

extent

upward

indicates

criminal

the

departure

significantly

defendant’s

of

that

divergence

may

the

be

warranted

defendant’s

underrepresents
history

from

or

the

defendant will commit other crimes.”

the

the

sentencing

if

“reliable

criminal

seriousness

likelihood

history
of

that

USSG § 4A1.3(a)(1).

the
the
A

district court may base an upward departure pursuant to § 4A1.3
on a defendant’s prior convictions, even if those convictions
are too old or otherwise not counted in the calculation of the
Sentencing Guidelines range.

See USSG § 4A1.3(a)(2).

When the district court applied an upward departure in part
under USSG § 5K2.21, it permissibly relied on the nature and
seriousness of the dismissed count of felon in possession of a
firearm.

Reviewed as a whole, this record supports the court’s
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consideration of the dismissed count and reveals that no conduct
or criminal history was impermissibly double-counted.
the

court

departing

gave
upward

criminal history.

an

adequate

based

on

explanation

the

of

its

Further,

reasons

underrepresentation

of

for

Hart’s

Thus, no error, plain or otherwise, resulted.

Accordingly, we affirm the 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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