UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4510
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUANE MICHAEL SCHOULTZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. William W. Wilkins, Senior Circuit
Judge, sitting by designation. (8:07-cr-01472-GRA-1)
Submitted: March 31, 2009 Decided: August 12, 2009
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. W. Walter Wilkins,
United States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duane Michael Schoultz pled guilty to one count of
armed robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006),
and one count of possession of a firearm in relation to a
violent felony, in violation of 18 U.S.C. § 924(c)(1)(a) (2006).
He received a forty-one month sentence for armed robbery and a
120-month sentence for the firearm offense to be served
consecutively, an upward variance of thirty-six months above the
high end of the advisory Sentencing Guidelines range. On
appeal, Schoultz argues that his sentence is unreasonable
because the Guidelines range adequately reflected the offense
conduct and the district court did not sufficiently explain its
reasons for imposing a variance sentence on the firearm count.
Finding no error, we affirm.
A presentence report (PSR) was prepared by the
probation officer. For the bank robbery count, the base offense
level was 20, plus a two-level enhancement for robbery of a
financial institution, yielding an adjusted offense level of 22.
After a three-level decrease for acceptance of responsibility,
the total offense level was 19. Schoultz’s criminal history
category was II. The advisory Guidelines range was 33-41 months
for the armed robbery and a consecutive mandatory minimum
84-month sentence on the firearm count. Therefore the total
2
advisory Guidelines range was 117-125 months. Schoultz did not
object to the PSR.
The district court notified Schoultz that it was
considering an upward variance “on the basis of one of the
primary factors of [18 U.S.C. §] 3553(a) [(2006)], and that is
deterrence, general and specific.” At the hearing, the court
found that there was a need for general deterrence in the
community so that community members knew that entering a bank
with a loaded pistol and threatening the lives of others would
result in a serious punishment. The court continued that there
was a need for the specific deterrence of preventing Schoultz
from using drugs and committing a similar crime. The court
imposed a sentence of 41 months on the robbery count and 120
months on the firearm count, for a total term of 161 months of
imprisonment.
Following United States v. Booker, 543 U.S. 220
(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Guidelines range. It must then consider the resulting range in
conjunction with the factors set forth in § 3553(a) and
determine an appropriate sentence. United States v. Abu Ali,
528 F.3d 210, 259-60 (4th Cir. 2008), cert. denied, 129 S. Ct.
1312 (2009). Appellate review of a district court’s imposition
of a sentence is for abuse of discretion. Gall v. United
3
States, 128 S. Ct. 586, 597 (2007); see also United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate court
must first ensure that the district court committed no
procedural error, such as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence--including an explanation
for any deviation from the Guidelines range.” Gall, 128 S. Ct.
at 597. While the “individualized [sentencing] assessment need
not be elaborate or lengthy, . . . it must provide a rationale
tailored to the particular case . . . and [be] adequate to
permit ‘meaningful appellate review.’” United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 128 S. Ct. at
597).
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence.
Id. “Substantive reasonableness review entails taking into
account the ‘totality of the circumstances, including the extent
of any variance from the Guidelines range.’” Pauley, 511 F.3d
at 473 (quoting Gall, 128 S. Ct. at 597). While the court may
presume a sentence within the Guidelines range to be reasonable,
it may not presume a sentence outside the range to be
unreasonable. Id. Moreover, it “‘must give due deference to
4
the district court’s decision that the § 3553(a) factors’”
justify imposing a variant sentence and to its determination
regarding the extent of any variance. Id. at 473-74. Even if
[the reviewing court] would have reached a different sentencing
result on [its] own, this fact alone is ‘insufficient to justify
reversal of the district court.’” Id. at 474.
The district court heard testimony that, during the
bank robbery, Schoultz brandished a handgun, told the occupants
of the bank to get down on the floor, grabbed a bank employee
and pushed her down to the floor, pointed the gun at the teller
and told her, “I’m not playing. I’ll blow your head off.”
(J.A. 10). The court noted the need for specific and general
deterrence. See United States v. Phinazee, 515 F.3d 511, 515-16
(6th Cir.) (noting that both specific and general deterrence are
proper sentencing considerations), cert. denied, 129 S. Ct. 612
(2008). The court stated that it “calculated and considered the
advisory Sentencing Guidelines, and . . . also considered the
relevant and statutory sentencing factors contained in 18 U.S.C.
[§] 3553(a)” in determining the sentence. We conclude that the
sentence imposed is reasonable and that the district court did
not abuse its discretion in imposing the sentence.
Accordingly, we affirm Schoultz’s sentence. We
dispense with oral argument because the facts and legal
5
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
6