UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5130
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDY J. LINNIMAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:07-cr-00037-D-1)
Submitted: February 19, 2009 Decided: March 19, 2009
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, David A.
Bragdon, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy J. Linniman appeals his conviction and 168-month
departure sentence after pleading guilty pursuant to a plea
agreement to unlawful transfer of a firearm, in violation of
26 U.S.C. §§ 5812, 5861, 5871 (2006), and unlawful possession of
firearms with altered serial numbers, in violation of 18 U.S.C.
§§ 922(k), 924 (2006). Linniman asserts that the district court
erred when it imposed a departure sentence: (i) without first
affording him adequate notice that it planned to depart upward;
(ii) that was too extensive for the crimes to which he pled
guilty; and (iii) without sufficient analysis to support the
departure sentence. Finding no error, we affirm.
Because Linniman did not object to the lack of Fed. R.
Crim. P. 32(h) notice in the district court, this court reviews
this issue for plain error. United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Rule 32(h) requires the sentencing
court to give the parties reasonable notice when it is
considering a departure on a ground not identified as a possible
basis for departure either in the presentence report or in a
party's prehearing submission. Fed. R. Crim. P. 32(h). Because
the district court imposed a departure sentence based on the
same grounds identified by the Government in its upward
departure motion, the district court was not required to provide
Rule 32 notice.
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Although Linniman does not dispute the legal or
factual correctness of the district court’s findings at
sentencing and does not claim that the district court was
unjustified in departing under the relevant Guidelines
provisions, Linniman does assert that his sentence is “close to
the maximum” and that the district court did not provide “a
rigorous analysis” before imposing the sentence. * We conclude
that the district court provided ample analysis of the reasons
it believed Linniman’s departure sentence was warranted, not
only during Linniman’s sentencing hearing, but also in a
detailed sentencing memorandum. Given the significant risk
associated with the particular conduct for which Linniman was
convicted, the district court’s meaningful articulation of its
consideration of the 18 U.S.C. § 3553(a) (2006) factors, and its
careful consideration of reasons warranting a departure from the
Guidelines range, we also find that the extent of Linniman’s
departure sentence was reasonable. See United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
*
Although Linniman also asserts that the district court
erred by relying on conduct of which he was acquitted in a
state court jury trial, this argument is meritless. See United
States v. Watts, 519 U.S. 148, 155-56 (1997) (holding that
sentencing courts may take acquitted conduct into account when
determining the appropriate sentence because a lower standard of
proof applies at the sentencing stage).
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Based on the foregoing, 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
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