UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4858
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CENOGY JOSEPH, a/k/a Goddy, a/k/a Joseph Cenogy,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:08-cr-00003-gec-bwc-1)
Submitted: June 17, 2009 Decided: July 7, 2009
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Christine Madeleine
Spurell, Research and Writing Attorney, Charlottesville,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney, Jeb T. Terrien, Assistant United States Attorney,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cenogy Joseph pleaded guilty, pursuant to a plea
agreement, to one count of possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2006). The
district court departed upward pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 4A1.3 (2007), and sentenced Joseph to
sixty months of imprisonment.
On appeal, Joseph argues that his sentence is
unreasonable because the factors relied on by the district court
in deciding to depart upward were already taken into account by
the Sentencing Guidelines. He asserts that his criminal history
category did not understate his criminal history because he had
no prior sentences that were not used in computing his criminal
history and had no prior sentence of more than one year; and
that his likelihood of recidivism was accounted for in the
Guidelines calculations.
“Regardless of whether the sentence imposed is inside
or outside the Guidelines range, the appellate court must review
the sentence under an abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007).
Appellate courts are charged with reviewing sentences for
reasonableness. 128 S. Ct. at 594, 597. Reasonableness review
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requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 597.
Here, Joseph does not challenge the procedural
reasonableness of the sentence; he does not allege that the
district court erred in its calculation of the Guidelines range,
failed to adequately explain its sentence, or failed to apply
the § 3553(a) factors. Instead, Joseph attacks the substantive
reasonableness of the sentence, contending that the recommended
Guidelines range adequately accounts for his criminal history.
When reviewing substantive reasonableness, this court “may
consider the extent of the deviation [from the recommended
Guidelines range], but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 128 S. Ct. at 597. That
this court would have reached a different result in the first
instance is insufficient reason to reverse the district court’s
sentence. Id.
A district court may depart upward from the Guidelines
range under USSG § 4A1.3(a) when “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)(1).
Commentary to this Guideline states that, “[i]n determining
whether an upward departure from Criminal History Category VI is
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warranted, the court should consider that the nature of the
prior offenses rather than simply their number is often more
indicative of the seriousness of the defendant’s criminal
record.” USSG § 4A1.3 cmt. n.2(B). “If the district court
decides to impose a sentence outside the Guidelines range, it
must ensure that its justification supports the ‘degree of the
variance’; thus, ‘a major departure should be supported by a
more significant justification than a minor one.’” United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008) (quoting
Gall, 128 S. Ct. at 597).
Our review of the record leads us to conclude that the
district court did not abuse its discretion in sentencing
Joseph. 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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