US v. Alvin Washington

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:06-cr-00311-CCE-1. Copies to all parties and the district court/agency. [1000261474].. [17-4570, 17-4575]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4570

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN MICHAEL WASHINGTON, a/k/a Michael Alvin Thomas, a/k/a Michael
Alvin Washington, a/k/a Malik,
Defendant - Appellant.

No. 17-4575

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN MICHAEL WASHINGTON, a/k/a Michael Alvin Thomas, a/k/a Michael
Alvin Washington, a/k/a Malik,
Defendant - Appellant.

Appeals from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:06-cr-00311-CCE-1; 1:16-cr-00012CCE-1)

Submitted: March 13, 2018

Decided: March 21, 2018

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Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North Carolina, for
Appellant. Kimberly Furr Davis, Winston-Salem, North Carolina, Michael Francis Joseph,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alvin Michael Washington pled guilty, pursuant to a plea agreement, to possession
of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The district
court imposed an upward variant sentence of 99 months’ imprisonment for the firearms
conviction. The court also revoked the term of supervised release Washington was serving
for a prior drug conviction and imposed a concurrent 18-month revocation sentence. *
Washington appeals both judgments. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal
but questioning whether the court properly considered Washington’s unscored prior
convictions when deciding to impose an upward variant sentence for the firearms
conviction. Washington has filed a pro se supplemental brief, raising the same issue as
counsel and questioning whether his sentence for the firearms conviction is otherwise
substantively reasonable and whether the court procedurally erred by failing to give him
timely notice that it was considering an upward departure and failing to follow the
incremental procedure governing departures under the Sentencing Guidelines. We affirm.
We review a criminal sentence, “whether inside, just outside, or significantly
outside the Guidelines range” for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Blue, 877
F.3d 513, 517 (4th Cir. 2017). This review requires consideration of both the procedural

*

We previously granted the parties’ joint motion to remand these cases for
resentencing on the ground that the Government breached the plea agreement when it urged
the court to impose consecutive sentences.
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and substantive reasonableness of the sentence. Gall, 552 U.S. at 51. In determining
whether a sentence is procedurally reasonable, we consider whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, selected a sentence based on facts that were not clearly erroneous, and
sufficiently explained the selected sentence. Id. at 49-51. Only after determining that the
sentence is procedurally reasonable do we consider whether the sentence is substantively
reasonable, “tak[ing] into account the totality of the circumstances.” Id. at 51.
In reviewing a sentence outside the Guidelines range, “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 range.”
United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). If a court’s deviation from the Guidelines range “is a substantial one, we must
more carefully scrutinize the reasoning offered by the district court in support of the
sentence. The farther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be.” United States v. Hampton, 441 F.3d
284, 288 (4th Cir. 2006) (alteration and internal quotation marks omitted). However, “we
must give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” United States v. Pauley, 511 F.3d 468, 473-74
(4th Cir. 2007) (internal quotation marks omitted).
We first conclude that Washington’s procedural challenges to his sentence for the
firearms conviction are without merit. The district court ultimately did not depart from the
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Guidelines but varied upward, a decision that does not require advance notice or use of the
incremental approach prescribed for departures. See Irizarry v. United States, 553 U.S.
708, 713-16 (2008) (explaining that advance notice of upward variance not required by
Fed. R. Crim. P. 32(h)). Moreover, counsel confirmed that he did not need additional time
to prepare arguments opposing an upward departure or variance.
We next reject Washington’s challenges to the substantive reasonableness of his
sentence for the firearms conviction. It was not per se unreasonable for the court to
consider Washington’s stale, unscored convictions. The court also reasonably determined
that Washington’s criminal history, including his unscored convictions, suggested that an
above-Guidelines sentence would serve the goals of deterrence and protecting the public.
The court explained that it was not simply that Washington had several unscored
convictions but that the lengthy sentences he received both for the unscored and scored
convictions had not deterred him from engaging in criminal conduct.
Critically, the court considered more than just Washington’s prior unscored
convictions. The court also observed that possessing firearms is a serious offense, in line
with Washington’s prior offenses, and that Washington exercised poor judgment when he
placed himself in the vicinity of drugs. The court, however, concluded that a sentence at
the statutory maximum (or a sentence as harsh as the Government proposed) was not
warranted in light of Washington’s success on supervised release, the progress he had made
while incarcerated, and the absence of any aggravating factors such as using the firearms.
Accordingly, we conclude that the court carefully considered the § 3553(a) factors and
reasonably decided that an upward variant sentence was warranted.
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In accordance with Anders, we have reviewed the entire record in these cases and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgments. This court requires that counsel inform Washington, in writing, of his right to
petition the Supreme Court of the United States for further review. If Washington requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Washington. 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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