UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ALEXANDER DEVINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00010-D-1)
Submitted: February 10, 2009 Decided: March 9, 2009
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES, PC,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Banumathi Rangarajan,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Alexander Devine pleaded guilty to possession
of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924
(2006), and was sentenced to a term of 262 months of
imprisonment. Devine argues on appeal that his sentence is
unreasonable because the district court’s departure above the
Sentencing Guidelines range pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3 (2006) was unwarranted and the
two-offense-level departure was excessive. We affirm.
In considering whether an upward departure was
appropriate, the court noted several items regarding Devine’s
criminal history and recidivism, including that he committed the
predicate offense while on probation for a conviction for
possession of a firearm by a convicted felon, he had seven prior
probation violations with five resulting revocations, he was
convicted of nine disciplinary infractions while incarcerated
for conspiracy to commit armed robbery with a dangerous weapon,
and he is a known leader of the Bloods gang. After hearing
argument of defense counsel, which included the observation that
Devine’s armed career criminal designation already subjected him
to a nearly doubled Guidelines range, and the Government’s
recommendation to sentence within the Guidelines range, the
court concluded that Devine’s criminal history category
seriously under-represented the seriousness of his criminal
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history and the likelihood that he would commit other crimes and
particularly noted his young age. The court concluded that an
upward departure to level 32 was appropriate, resulting in a
Guidelines range of 210 to 262 months, and imposed a 262-month
sentence. In fashioning the sentence, the court relied on
Devine’s history, noting that he committed the predicate offense
while on probation from serving a state armed felon offense;
that he had seven felony convictions, including three violent
felonies involving firearms; that he has trafficked illegal
drugs from his house, exposing his daughter to crime and
violence in the home; that he had opportunities to address
substance abuse issues, but failed to complete court ordered
substance abuse programs on two occasions; that his prior
lenient sentences and conduct while on probation did not promote
respect for the law; that he would not be deterred from crime
absent a lengthy sentence; and that there is an extremely high
likelihood of recidivism.
We review a sentence for abuse of discretion. See
Gall v. United States, 128 S. Ct. 586, 597 (2007). First, this
court must “ensure that the district court committed no
significant procedural error,” including improperly calculating
the Guidelines range, not considering the 18 U.S.C. § 3553(a)
(2006) factors, relying on clearly erroneous facts, or giving an
inadequate explanation for the sentence. United States v.
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Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128 S. Ct.
at 597), cert. denied, 128 S. Ct. 2525 (2008). The court then
considers the substantive reasonableness of the sentence
imposed, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 128 S. Ct. at 597.
Devine argues that the upward departure resulted in
his being punished excessively because his criminal history had
already established his criminal history score and his prior
convictions for a crime of violence enhanced his offense level.
He also contends that the court should not have relied on the
same factors to depart upward and then place his sentence at the
high end of the resulting Guidelines range. No error occurred
in this regard, however.
A district court may depart upward from an applicable
Guidelines range 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 . . . .” USSG § 4A1.3(a). The district court decided
that Devine’s history of committing seven felonies by the age of
twenty-six and his several probation violations established a
high likelihood that he would commit other crimes without a
lengthy sentence. The court also considered Devine’s sale of
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drugs from his home and that previous, more lenient sentences
had not deterred him from criminal conduct.
We conclude that the court’s decision to depart under
§ 4A1.3 and its two-offense-level departure from 30 to 32 was
factually supported and that the resulting sentence was
reasonable. Moreover, the court adequately explained its
reasons for the departure.
We therefore affirm the sentence imposed by the
district court. 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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