United States v. Southern

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                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4991


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DARRYL MCCORMICK SOUTHERN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00006-WO-1)


Submitted:    June 18, 2009                 Decided:   June 22, 2009



Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Robert A.J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Darryl McCormick Southern appeals from his 188-month

sentence imposed pursuant to his guilty plea to possession of a

firearm by a convicted felon.                 On appeal, Southern argues that

the    decision   to       run   his   sentence      consecutively        to    the   state

sentence he was then serving was unreasonable and constituted an

abuse of discretion.             We affirm.

              Under     U.S.      Sentencing       Guidelines     Manual       § 5G1.3(c)

(2007), the district court possessed the discretion to run the

imposed       sentence       concurrently,          partially      concurrently,        or

consecutively         to      Southern’s          prior   undischarged          term    of

imprisonment.         In choosing to run the sentence consecutively,

the court considered the undisputed advisory Guidelines range of

180-210 months in prison, the 18 U.S.C. § 3553 (2006) sentencing

factors, the fact that Southern’s undischarged state sentence

was the result of a “series” of probation violations, the fact

that    the   state     and      federal   sentences      were     not    related,     and

Southern’s “extensive criminal history.”                         In fact, the court

noted that there was a significant argument to be made that an

appropriate sentence would require an upward departure from the

Guidelines,       but      the     court    declined       to     so     depart,      given

Southern’s      cooperation,        age,    and     the   fact    that    his    sentence

would be run consecutively.                We find no abuse of discretion and



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hold that the decision to run Southern’s sentence consecutively

to his undischarged state sentence was reasonable.

          Accordingly,   we   affirm.   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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