UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAY DEWAYNE LOUTHIAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-03-946-HFF)
Submitted: February 17, 2006 Decided: April 14, 2006
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael MacKinnon, Greenville, South Carolina, for Appellant. Alan
Lance Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ray Dewayne Louthian appeals a 360-month sentence imposed
after he pleaded guilty to conspiracy to rob a post office and
present stolen money orders for payment, in violation of 18 U.S.C.
§§ 371, 500, 2114(a) (2000); assault and robbery of a postal
employee and aiding and abetting, in violation of 18 U.S.C.
§§ 2114(a), 2 (2000); using, carrying and possessing a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C. §§ 924(c)(1)(A), 2 (2000); conspiracy to use, carry, and
possess a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(o) (2000); theft and conversion of
blank postal money orders and aiding and abetting, in violation of
18 U.S.C. §§ 500, 2 (2000); and being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)
(2000). Counsel for Louthian filed an Anders1 brief, in which he
states that there are no meritorious issues for appeal, but
suggests that the district court erred in departing upward from the
Guideline2 range in sentencing Louthian. Louthian was advised of
his right to file a pro se supplemental brief, but did not file a
brief.
1
Anders v. California, 386 U.S. 738 (1967).
2
U.S. Sentencing Guidelines Manual (USSG) (2003).
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The probation officer concluded that Louthian qualified
for sentencing as a career offender and an armed career criminal,3
and calculated a Guideline range of 272 to 319 months of
imprisonment. The probation officer also recommended an upward
departure from the Guideline range based upon Louthian’s prior
convictions and the nature of those crimes. Louthian objected to
the probation officer’s recommendation for an upward departure,
contending that the calculated Guideline range provided adequate
punishment options for the district court in his case. The
district court concluded that an upward departure was warranted,
determined that a departure to offense level thirty-six in criminal
history category VI was appropriate, and sentenced Louthian to 360
months of imprisonment.
On appeal, Louthian repeats his arguments that an upward
departure was not warranted in this case, and that even if a
departure was appropriate, the district court erred in determining
the extent of the departure. “If reliable information indicates
that the defendant's criminal history category substantially
under-represents the seriousness of the defendant's criminal
history or the likelihood that the defendant will commit other
crimes, an upward departure may be warranted.” USSG § 4A1.3(a)(1).
We have noted that “[s]ection 4A1.3 was drafted in classic
3
Louthian did not object to classification as an armed career
criminal or career offender.
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catch-all terms for the unusual but serious situation where the
criminal history category does not adequately reflect past criminal
conduct or predict future criminal behavior.” United States v.
Lawrence, 349 F.3d 724, 730 (4th Cir. 2003). “In determining
whether an upward departure from Criminal History Category VI is
warranted, the court should consider that the nature of the prior
offenses rather than simply their number is often more indicative
of the seriousness of the defendant’s criminal record.” USSG
§ 4A1.3 comment. (n.2(B)). In deciding the extent of a departure
in the case of a defendant who is already in criminal history
category six, “the court should structure the departure by moving
incrementally down the sentencing table to the next higher offense
level in Criminal History Category VI until it finds a guideline
range appropriate to the case.” USSG § 4A1.3(a)(4)(B).
Our review of the record reveals that the district court
explained in great detail its decision that an upward departure was
appropriate in this case, as well as its reasoning supporting a
conclusion that the intervening offense level of thirty-five did
not adequately address the inadequacy of Louthian’s criminal
history. We conclude that, under either a de novo or abuse of
discretion standard of review, the district court did not err in
its decision to upwardly depart, or its selection of the ultimate
sentence in this case.
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In accordance with Anders, we have thoroughly examined
the entire record, including the transcripts of the Fed. R. Crim.
P. 11 and sentencing hearings, for any other potentially
meritorious issues and have found none. Accordingly, we affirm
Louthian’s convictions and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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