UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4255
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN DEWITT GOODE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00298-REP-1)
Submitted: December 23, 2008 Decided: January 26, 2009
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, HICKSTYMAS, LLC, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Sara E.
Chase, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Dewitt Goode pled guilty to driving after being
adjudicated an habitual offender, in violation of 18 U.S.C.
§ 13 (2006), assimilating Va. Code Ann. § 46.2-357(B)(3) (2005).
He received a sentence of thirty-six months’ imprisonment.
Goode asserts two sentencing errors on appeal. First, Goode
contends that his sentence is unreasonable because the district
court did not adequately consider the disparity between Goode’s
sentence and the applicable sentencing range under the Virginia
sentencing guidelines. In failing to do so, Goode argues, the
court violated the requirement of 18 U.S.C. § 3553(a)(6) (2006)
to consider “the need to avoid unwarranted sentencing
disparities” as well as the requirement of § 13(a) that those
convicted under the Assimilative Crimes Act be subject to a like
punishment as they would receive in state court.
Second, Goode contends that, because the relevant
state range is for a sentence of twelve to seventeen months’
imprisonment, Goode’s thirty-six month sentence is greater than
necessary to fulfill the purposes of sentencing as set forth in
§ 3553(a). We affirm.
Generally, we review sentences for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 128 S. Ct. 586, 597 (2007); United States v. Pauley, 511
F.3d 468, 473-74 (4th Cir. 2007). However, when we “review a
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sentence imposed for an assimilated offense for which there is
no sufficiently analogous offense guideline, we do so under the
plainly unreasonable standard.” United States v. Finley, 531
F.3d 288, 294 (4th Cir. 2008) (internal quotation marks and
citations omitted). When applying the plainly unreasonable
standard, we first determine whether a sentence is unreasonable.
See United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).
If we find that the sentence is procedurally or substantively
unreasonable, we “must then decide whether the sentence is
plainly unreasonable, relying on the definition of ‘plain’ that
we use in our plain error analysis. Thus, for purposes of
determining whether an unreasonable sentence is plainly
unreasonable, ‘[p]lain’ is synonymous with ‘clear’ or,
equivalently, ‘obvious.’” Id. (internal quotation marks and
citation omitted) (alteration in original).
In determining procedural reasonableness, we must
assess whether the district court failed to consider the
§ 3553(a) factors and any arguments presented by the parties,
selected a sentence based on “clearly erroneous facts,” or
failed to sufficiently explain the sentence. Gall, 128 S. Ct.
at 597; Pauley, 511 F.3d at 473. Next, we review the
substantive reasonableness of the sentence, “taking into account
the ‘totality of the circumstances.’” Pauley, 511 F.3d at 473
(quoting Gall, 128 S. Ct. at 597).
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When evaluating the sentencing court’s explanation of
a sentence, we have consistently held that the sentencing court
“need not robotically tick through § 3553(a)’s every subsection”
but should “provide us an assurance that the sentencing court
considered the § 3553(a) factors with regard to the particular
defendant.” United States v. Moulden, 478 F.3d 652, 657 (4th
Cir. 2007) (internal quotation marks and citation omitted); see
also United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006); United States v. Montes-Pineda, 445 F.3d 375, 380 (4th
Cir. 2006). On review, we will not evaluate the adequacy of the
district court’s explanation “in a vacuum,” but rather will
consider “[t]he context surrounding [its] explanation.” Montes-
Pineda, 445 F.3d at 381. In considering the district court’s
application of the guidelines, we review factual findings for
clear error and legal conclusions de novo. See United States v.
Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Our review of the record convinces us that Goode
“overstates the district court’s lack of consideration, as well
as the alleged unwarranted disparity between a sentence that
would be imposed under the Virginia guidelines and the one
imposed by the district court in this case.” Finley, 531 F.3d
at 294. The district court indicated that it considered
Virginia’s sentencing guidelines but found Goode’s “abysmal”
criminal history justified a longer sentence, conceivably up to
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Virginia’s five-year statutory maximum. However, in light of
Goode’s military service, the district court imposed a sentence
of thirty-six months, which it found necessary to serve the
requirements of 18 U.S.C. § 3553(a), specifically promoting
respect for the law and protecting the public from Goode’s
misconduct. Accordingly, we find that Goode’s sentence was not
unreasonable.
Additionally, Goode misunderstands 18 U.S.C. § 13’s
prescription that individuals convicted under § 13 be subject to
“a like punishment” as they would have received in state court.
In Finley, we noted that “like punishment, as used in the
Assimilative Crimes Act, does not require that the punishment be
identical but only that sentences in federal court for
assimilated crimes fall within the minimum and maximum terms
established by state law.” Id. at 295 (internal quotation marks
and citations omitted). Accordingly, district courts have wide
discretion in imposing sentences within that range. Id. Were
Goode to have been convicted of this offense in a Virginia state
court, he would have faced a mandatory minimum sentence of one
year and a statutory maximum of five years’ imprisonment. See
Va. Code Ann. § 46.2-357(B)(2), (3). Here, Goode received a
sentence of thirty-six months. Because Goode was sentenced
within the state-prescribed range, he received “a like
punishment” for purposes of § 13.
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Next, Goode contends that his sentence is “far too
long,” as it is “greater than necessary to comply with the
purposes of sentencing set forth in § 3553(a).” Further, Goode
argues that “the mere act of driving onto federal property does
not warrant a sentence so much longer than [he] would have
received if he had been pulled over on a state road.” As we
discussed above, due to Goode’s significant criminal history,
his sentence is not greater than necessary to further the
purposes of § 3553(a). District courts need not give equal
weight to all of § 3553(a)’s factors. See Pauley, 511 F.3d at
476. Instead, it is “quite reasonable for the sentencing court
to have attached great weight to a single factor.” Id.
(internal quotation marks and citation omitted). In this case,
the district court gave great weight to two factors, promoting
respect for the law and protecting the public. Accordingly,
Goode’s second argument is without merit.
Because we do not find Goode’s sentence unreasonable,
we need not address whether it was plainly unreasonable. We
reject Goode’s challenges to his sentence and affirm the
district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately addressed
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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