UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4331
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES VINCENT BOYD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-161)
Submitted: February 28, 2006 Decided: April 11, 2006
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Jonathan
Scott Gasser, Acting United States Attorney, Columbia, South
Carolina, Rose Mary Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Vincent Boyd appeals his ninety-month sentence
imposed after he pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)(2000).
Counsel for Boyd has filed an Anders* 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 sentencing
guidelines range under U.S. Sentencing Guidelines Manual § 4A1.3
(2003) in sentencing Boyd. Boyd was advised of his right to file
a pro se supplemental brief, but did not file a brief.
A pre-sentence investigation report (PSR) was prepared.
The PSR calculated a base offense level of 20 under USSG
§ 2K2.1(a)(4)(A). After reducing the offense level by three levels
for acceptance of responsibility, the total offense level was 17.
Boyd had an extensive criminal history, with a criminal history
score of 27, plus two additional points for committing the offense
while on supervised release, and one additional point for
committing the offense less than two years after his release from
custody, for a total score of 30, placing him well beyond the 13
points needed for criminal history category VI. The resulting
guideline range was 51-63 months of imprisonment.
The Government moved for an upward departure under USSG
§ 4A1.3, on the basis that Boyd’s criminal history category
*
Anders v. California, 386 U.S. 738 (1967).
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significantly under-represented the seriousness of Boyd’s past
criminal conduct and the likelihood of recidivism. Boyd opposed
the motion. He argued that he was not a serious threat to the
public welfare, and that the provisions for forming the basis of an
upward departure under § 4A1.3(a)(2) did not apply to his case.
The district court concluded that an upward departure was
warranted, determined that a departure to offense level 21 in
criminal history category VI was appropriate, and sentenced Boyd to
ninety months of imprisonment.
On appeal, Boyd repeats his arguments that an upward
departure was not warranted in this case. “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 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.”
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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 VI, “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 detail its decision that an upward departure was
appropriate in this case, as well as its reasoning supporting a
conclusion that the intervening offense levels 18 through 20 did
not adequately address the inadequacy of Boyd’s criminal history.
We conclude that, under either a reasonableness or abuse of
discretion standard of review, the district court did not err in
its decision to depart upward, or in its selection of the ultimate
sentence in this case.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Boyd’s conviction 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
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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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