US v. James Fulton McKoy

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:15-cr-00015-D-1 Copies to all parties and the district court/agency. [999965421].. [15-4752]

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Appeal: 15-4752 Doc: 27 Filed: 11/09/2016 Pg: 1 of 4 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4752 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES FULTON MCKOY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, Chief District Judge. (7:15-cr-00015-D-1) Submitted: October 18, 2016 Decided: November 9, 2016 Before KING, KEENAN, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May-Parker, Barbara D. Kocher, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4752 Doc: 27 Filed: 11/09/2016 Pg: 2 of 4 PER CURIAM: James Fulton McKoy appeals the 120-month sentence imposed following his guilty plea to mailing bomb threats, in violation of 18 U.S.C. § 844(e) (2012). On appeal, McKoy challenges the substantive reasonableness the imposed the by district of court upward pursuant Guidelines Manual § 4A1.3, p.s. (2015). departure to U.S. sentence Sentencing We affirm. We “review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard.” 38, 41 (2007). Gall v. United States, 552 U.S. Under this standard, a sentence is reviewed for both procedural and substantive reasonableness. Id. at 51. In the present case, McKoy does not assert that the district court committed procedural error. We therefore review the court’s decision only for substantive reasonableness under the totality of the circumstances. United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2015) (internal quotation marks omitted). “When reviewing a departure, we consider whether the 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 marks omitted). reverse a range.” Id. at 529 (internal quotation “[W]e must defer to the trial court and can sentence only if it is unreasonable, even if the sentence would not have been the choice of the appellate court.” 2 Appeal: 15-4752 Doc: 27 Filed: 11/09/2016 Pg: 3 of 4 United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks omitted); see Howard, 773 F.3d at 531 (same). We conclude that discretion in Guidelines range departing imprisonment. departure on the and district from court McKoy’s imposing a did not advisory term of abuse its Sentencing 120 months’ “A court may base a Guidelines § 4A1.3 upward a defendant’s prior convictions, even if those convictions are too old to be counted in the calculation of the Guidelines range under Guidelines § 4A1.2(e).” McCoy, 804 F.3d 349, 352 (4th Cir. 2015). court concluded that considering those United States v. Here, the district convictions, McKoy’s lengthy criminal history, the lenient sentences he received, his failure to modify his behavior, and the conduct underlying the instant offense was necessary to better reflect McKoy’s criminal history. See id. The district court also reasonably applied the relevant 18 U.S.C. § 3553(a) (2012) factors. The district court considered McKoy’s criminal history in concluding that an above-Guidelines sentence protect was the Furthermore, necessary public. the to See district promote 18 respect U.S.C. court for the law § 3553(a)(2)(A), reasonably concluded and (C). that McKoy’s extensive criminal history did not adequately deter him from committing the instant offense and, thus, that a lengthier 3 Appeal: 15-4752 Doc: 27 Filed: 11/09/2016 Pg: 4 of 4 sentence was necessary to afford adequate deterrence. See id. § 3553(a)(2)(B); see also United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006) (“[A] shorter prison term was inappropriate for a defendant who had repeatedly committed a serious offense and who had already proven immune to other means of deterrence.”). We therefore hold that the 120-month sentence is substantively reasonable. Accordingly, we affirm the district court’s judgment. dispense with contentions are oral argument adequately because presented the before facts this and court We legal and argument would not aid the decisional process. AFFIRMED 4

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