US v. Darrian Abbott

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00426-CCE-1. Copies to all parties and the district court. [999957066]. [16-4104]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4104

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRIAN JARRELL ABBOTT,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00426-CCE-1)

Submitted:

September 30, 2016

Decided:

October 28, 2016

Before MOTZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant
Federal
Public
Defender,
Winston-Salem,
North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert
A.J.
Lang,
Assistant
United
States
Attorney,
Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darrian Jarrell Abbott appeals from his 84-month sentence
imposed after a remand for resentencing.

Abbott had originally

been sentenced to 15 years in prison, after a finding that he
qualified as an armed career criminal.
to

run

partially

Abbott’s

prior

concurrently

appeal,

we

with

vacated

The sentence was imposed
his

his

state

sentence.

sentence

based

on

In
the

finding that one of the predicates used to support the armed
career criminal enhancement was no longer a proper predicate
after Johnson v. United States, 135 S. Ct. 2551 (2015).
remand,

the

district

court

recalculated

Abbott’s

On

Guidelines

range without the armed career criminal enhancement and imposed
an 84-month sentence consecutive to his state sentence.

Abbott

timely appealed.
Abbott now contends that his new sentence is procedurally
and substantively unreasonable.
a

district

standard.

court

under

a

We review a sentence imposed by

deferential

abuse

of

discretion

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

In

reviewing a sentence, we must first ensure that the district
court

committed

calculate

or

no

procedural

improperly

error,

calculating

such
the

as

failing

Guidelines

to

range,

treating the Guidelines as mandatory, failing to consider the 18
U.S.C. § 3553(a) (2012) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
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chosen

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sentence.

procedural

Gall,

errors,

reasonableness

of

551

we
the

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U.S.

then

at

51.

If

consider

sentence.

there

the

Id.

are

no

substantive

A

substantive

reasonableness review entails taking into account the totality
of the circumstances.
473

(4th

sentence

Cir.

2007)

within

the

United States v. Pauley, 511 F.3d 468,
(quotations
correctly

presumptively reasonable.

and

citation

calculated

omitted).

Guidelines

range

presumption

can

only

is

United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
a

A

be

rebutted

by

a

showing

Such

that

the

sentence is unreasonable when measured against the § 3553(a)
factors.

Id.

“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented.”

United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted).

Accordingly, a sentencing court must

apply the relevant § 3553(a) factors to the particular facts
presented and must “state in open court” the particular reasons
that support its chosen sentence.
omitted).

Id. (internal quotation marks

Stating in open court the particular reasons for a

chosen sentence requires the district court to set forth enough
to satisfy this court that the district court has a reasoned
basis

for

its

decision

and

has

arguments.

Id.

Carter, though, does not require a sentencing
3

considered

the

parties’

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court

to

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“robotically

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tick

subsections of § 3553(a).

through”

otherwise

irrelevant

Id. at 329 (quoting United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006)).
Under U.S. Sentencing Guidelines Manual § 5G1.3(c) (2013),
in any case involving an undischarged term of imprisonment, “the
sentence

for

the

concurrently,

instant

partially

offense

may

concurrently,

or

be

imposed

to

consecutively

run

to

the

prior undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.”

In reaching its decision,

the court should consider the § 3553(a) sentencing factors, the
type and length of the undischarged sentences, the time served
and the time likely to be served on the undischarged sentences,
whether the undischarged sentence was imposed in state court or
federal

court,

determination.

and

any

other

circumstances

relevant

to

the

See USSG § 5G1.3 (comment. n.3(A)).

Abbott first contends that the district court provided an
insufficient explanation for running the sentence consecutively
to his state sentence.
length

of

Abbott’s

However, the court noted the reduced

Guidelines

range

on

resentencing,

the

unrelated nature of the state conviction, and Abbott’s lengthy
and

violent

criminal

history.

The

court

also

considered

Abbott’s previous lengthy incarceration and the failure of that
sentence

to

deter

further

heard

him

from

from
Abbott

the

instant

regarding
4

conduct.
certain

The

court

potentially

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mitigating factors and explicitly stated that it considered the
fact that Abbott pled only to possession of ammunition and that
that no other illegal conduct was happening at the time.

We

find that the court set forth sufficient reasoning supporting
the

within-Guidelines

sentence

and

the

decision

to

run

the

of

Abbott’s

sentence consecutively to Abbott’s state sentence.
Turning

to

the

substantive

reasonableness

sentence, he argues that his mitigating arguments sufficiently
rebutted the presumptive reasonableness of the within-Guidelines
sentence.

We conclude there was no abuse of discretion because

the district court considered the arguments by both parties and
rationally found that a consecutive sentence was appropriate.
While

the

court

might

have

imposed

a

lower

or

concurrent

sentence given the mitigating circumstances cited by Abbott, the
mere

fact

that

the

court

did

not

consider

the

mitigating

circumstances worthy of a reduction does not render a sentence
unreasonable.

Because there is a range of permissible outcomes

for any given case, we must resist the temptation to “pick and
choose” among possible sentences and rather must “defer to the
district court’s judgment so long as it falls within the realm
of

these

rationally

available

choices.”

United

States

v.

McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); see also United
States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting

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substantive reasonableness “contemplates a range, not a point”
(internal quotation marks omitted)).
Accordingly, we affirm Abbott’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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