US v. Aaron Carmichael

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00211-FL-1 Copies to all parties and the district court/agency. [999734195].. [15-4279]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4279

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON CARMICHAEL,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:14-cr-00211-FL-1)

Submitted:

December 23, 2015

Decided:

January 12, 2016

Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
Aaron Carmichael pled guilty to possession of a firearm and
ammunition

by

a

convicted

felon.

The

district

court

varied

upward and sentenced Carmichael to 72 months’ imprisonment.

On

appeal,

by

Carmichael

argues

that

the

district

court

erred

applying a two-level enhancement for possessing a stolen firearm
and by imposing a four-level upward variance.
We

review

a

reasonableness,

sentence

applying

for

“an

We affirm.

procedural

and

substantive

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

standard.”

“In assessing

the district court’s calculation of the Guidelines range, we
review its legal conclusions de novo and its factual findings
for clear error.”
Cir.

2014).

determining

United States v. Cox, 744 F.3d 305, 308 (4th

“Sentencing

judges

may

Guidelines

range

by

a

find
a

facts

relevant

preponderance

of

to
the

evidence,” id. (internal quotation marks omitted), that is, the
court must find these facts “more likely than not” to be true,
see United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).
Having

reviewed

the

record,

we

conclude

that

the

district

court’s finding that the firearm Carmichael possessed was more
likely than not stolen was not clearly erroneous.

Although the

firearm’s owner believed that the firearm had been mislaid, the
district court was not required to agree with this conclusion in
light of the facts indicating otherwise.
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Carmichael also challenges the upward variance imposed by
the

district

court.

A

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.

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

364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)) (alteration omitted).
sentence,

we

consider

whether

the

“In reviewing a variant
sentencing

court

acted

reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range.”

United States v. Washington, 743 F.3d

938, 944 (4th Cir. 2014) (internal quotation marks omitted).
Having reviewed the record and the district court’s thorough
explanation

of

its

sentence,

we

conclude

that

Carmichael’s

variance sentence is reasonable.
Accordingly, we affirm the judgment of the district court. ∗
We

dispense

with

oral

argument

∗

because

the

facts

and

legal

We note that, as Carmichael asserts in his reply brief,
the Government’s brief contains several factual statements that
are unsupported by the record.
We decline to consider such
allegations on appeal. See Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989) (“[A]n appellate court normally
will not consider facts outside the record on appeal.”).
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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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