UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD CARROLL OLIVER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (5:06-cr-00078-D)
Submitted: July 20, 2007 Decided: August 3, 2007
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard C. Oliver pled guilty to possessing a firearm
after having been convicted of a crime punishable by a term of
imprisonment exceeding one year, in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (2000). The Government moved for an upward
departure under USSG §§ 4A.3, 5K2.6 because Oliver’s criminal
history category under-represented the seriousness of his criminal
history or the likelihood that he would commit future crimes, and
because the firearm was used in the commission of the offense. The
district court upwardly departed two levels, sentencing Oliver to
68-months in prison.
Oliver appealed his sentence and contends his sentence
was unreasonable because the district court erred in upwardly
departing from the advisory guidelines range. He argues that the
conduct underlying the departure for discharging the firearm was
already accounted for by the four-level enhancement under USSG
§ 2K2.1(b)(6) for using a firearm in connection with another
felony, thus the departure amounted to double-counting. Finding no
error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. In reviewing a sentence outside the
guidelines range, this court must consider “whether the sentencing
court acted reasonably both with respect to its decision to impose
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such a sentence and with respect to the extent of the divergence
from the guideline range.” United States v. Hernandez-Villanueva,
473 F.3d 118, 123 (4th Cir. 2007). A sentence is unreasonable if
the “court provides an inadequate statement of reasons or relies on
improper factors in imposing a sentence outside the properly
calculated advisory sentence range.” Id. A district court may
depart upward from the guidelines range under USSG § 5K2.6 if a
firearm was used or possessed. “The extent of the increase
ordinarily should depend on the dangerousness of the weapon, the
manner in which it was used, and the extent to which its use
endangered others.” Specifically, “the discharge of a firearm
might warrant a substantial increase.” USSG § 5K2.6.
The district court granted the upward departure because
it found the weapon was fired by Oliver in the vicinity of the
intended victim and in the direction of a bus occupied by children,
and was an attempt to cause serious injury to the victim. The
court found this conduct was not a part of the guideline
calculations and merited an upward departure. The four-level
enhancement under USSG § 2K2.1(b)(6) accounted for Oliver’s attempt
to cause serious harm to the victim, but did not account for the
extreme recklessness in discharging a firearm in the vicinity of
uninvolved children. Thus, the upward departure did not amount to
unlawful double-counting. In the alternative, a departure pursuant
to § 4A1.3 is encouraged, provided that the criminal history
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category does not account adequately for the defendant’s past
criminal conduct or the likelihood that he will commit other
crimes. United States v. Dixon, 318 F.3d 585, 588 (4th Cir. 2003).
The district court sentenced Oliver post-Booker and
appropriately treated the guidelines as advisory. The court
sentenced Oliver after considering and examining the sentencing
guidelines and the § 3553(a) factors, as instructed by Booker. The
district court accepted the facts found in the presentence
investigation report, and the testimony of the witness to the
conduct, and found Oliver’s offense level to be 23 and his criminal
history score to be III, for a corresponding advisory guideline
range of 57 to 71 months.
The district court examined the § 3553(a) factors and
concluded that the factors set forth therein supported an upward
departure from the guidelines range. The court discussed the
seriousness of Oliver’s offense and the risk it created to both the
victim and the children. Moreover, the court looked at the
likelihood that Oliver would commit further crimes, the need to
protect the public, and his extensive criminal history. The court
imposed the 68-month sentence to afford adequate deterrence from
future criminal acts and to promote respect for the law. On this
record, we have no difficulty concluding that the district court
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sufficiently articulated its reasons for the departure from the
guidelines range.*
Accordingly, we affirm the district court’s judgment. 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
*
“The district court need not discuss each factor set forth in
§ 3553(a) ‘in checklist fashion;’ ‘it is enough to calculate the
range accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.’” United States v. Moreland,
437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006)
(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
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