UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4145
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DECOVAN SEABROOK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:05-cr-01322)
Submitted: January 31, 2008 Decided: February 12, 2008
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Reginald
I. Lloyd, United States Attorney, Columbia, South Carolina, Alston
Calhoun Badger, Jr, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Decovan Seabrook was convicted by a jury of knowingly
using and carrying a firearm during and in relation to, and
possessing a firearm in furtherance of, a drug trafficking crime,
18 U.S.C. § 924(c)(1)(A)(iii) (2000). He was sentenced to 360
months’ imprisonment. His counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but raising for the court’s
consideration (1) whether the district court erred in denying
Seabrook’s motion to suppress; and (2) whether the district court
erred in granting the Government’s motion for an upward departure
pursuant to U.S. Sentencing Guidelines Manual §§ 5K2.2, 5K2.21,
p.s. (2005). Seabrook has filed a pro se supplemental brief
asserting that the court erred in allowing the prosecutor to make
improper statements during the course of the trial. The Government
did not file a reply brief. After reviewing the record, we affirm.
This court reviews the factual findings underlying the
denial of a motion to suppress for clear error and the legal
conclusions de novo. United States v. Johnson, 400 F.3d 187, 193
(4th Cir. 2005). The evidence is construed in the light most
favorable to the prevailing party below. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
Seabrook first contests the voluntariness of his
statements made to law enforcement officers on the ground that they
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were taken by investigators in violation of Miranda v. Arizona, 384
U.S. 436 (1966). A statement is voluntary if it is “the product of
an essentially free and unconstrained choice by its maker.”
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). An analysis
of the voluntariness of a statement is derived from the totality of
the circumstances. Id. at 226. The relevant determination
regarding voluntariness is whether government agents have overborne
the defendant’s will or left his “capacity for self-determination
critically impaired.” Id. at 225. After reviewing the record, we
conclude that the district court did not err in denying Seabrook’s
motion to suppress.
Seabrook also argues on appeal that the district court
erred in granting the Government’s motion for upward departure
under USSG §§ 5K2.2, 5K2.21, p.s. Following United States v.
Booker, 543 U.S. 220 (2005), a district court must engage in a
multi-step process at sentencing. The district court must
calculate the appropriate advisory Guidelines range by making any
necessary factual findings. United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). The
district court should then afford the parties “an opportunity to
argue for whatever sentence they deem appropriate.” Gall v. United
States, 128 S. Ct. 586, 596 (2007). Then, the sentencing court
should consider the resulting advisory Guideline range in
conjunction with the factors set out in 18 U.S.C.A. § 3553(a) (West
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2000 and Supp. 2007), and determine whether the § 3553(a) factors
support the sentence requested by either party. Id. Considering
the factors in § 3553(a) does not require the sentencing court to
“robotically tick through” every subsection of § 3553(a). United
States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert.
denied, 127 S. Ct. 3044 (2007). The sentencing court may not
presume that the Guidelines range is reasonable, and if it decides
to impose a sentence outside the Guidelines range it “must consider
the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.”
Gall, 128 S. Ct. at 596-97.
The appellate court reviews a sentence for
reasonableness, focusing on whether the district court abused its
discretion, regardless of whether the sentence imposed is inside or
outside the Guidelines range. Gall, 128 S. Ct. at 597; United
States v. Pauley, ___ F.3d ___, 2007 WL 4555520 (4th Cir. Dec. 28,
2007). This involves two steps: first, examining the sentence for
significant procedural errors, and second, evaluating the substance
of the sentence. Pauley, 2007 WL 4555520 at *5. “Substantive
reasonableness review entails taking into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Id. (internal quotations omitted). While the
appellate court may presume a sentence within the Guidelines range
to be reasonable, it may not presume a sentence outside the range
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to be unreasonable. Id. When reviewing a departure, the appeals
court considers “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. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007).
Here, Seabrook’s Guideline sentence was the minimum term
of imprisonment required by statute, i.e, ten years. See USSG
§ 2K2.4(b). Seabrook was ultimately sentenced to three times the
Guidelines sentence based on the Government’s motion for upward
departure. In light of the facts of this case and the district
court’s meaningful articulation of its consideration of the
§ 3553(a) factors and the bases for departure, we find the district
court’s decision to depart, and the extent of the departure,
reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
further find no merit to the claims raised in Seabrook’s pro se
supplemental brief. We therefore affirm Seabrook’s conviction and
sentence. This court requires that counsel inform Seabrook, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Seabrook 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
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withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Seabrook. 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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