UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4163
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL JAMALL YORK, a/k/a Michael Kashim York,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00176-JAB-1)
Submitted: April 30, 2010 Decided: May 25, 2010
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Jamall York appeals his sentence after
pleading guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). On
appeal, he contends that the district court erred in applying
the sentencing guidelines, and his sentence is procedurally and
substantively unreasonable, because the district court ordered
that his sentence run consecutive to an undischarged term of
state imprisonment without discussing or considering the policy
statement and factors under 18 U.S.C. § 3553(a)(5) (2006); U.S.
Sentencing Guidelines Manual § 5G1.3(c) (2007). We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007).
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In sentencing, the district court should first
calculate the advisory guideline range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the
relevant 18 U.S.C. § 3553(a) (2006) factors to determine whether
they support the sentence requested by either party. Id. When
rendering a sentence, the district court must make and place on
the record an individualized assessment based on the particular
facts of the case. Carter, 564 F.3d at 328, 330.
In explaining the chosen sentence, the “sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority,”
but when the district court decides simply to apply the
guidelines, “doing so will not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356 (2007).
Where a party “presents nonfrivolous reasons for imposing a
different sentence, however, the judge will normally go further
and explain why he has rejected those arguments.” Id. at 357.
While a district court must consider the statutory factors and
explain its sentence, it need not explicitly reference § 3553(a)
or discuss every factor on the record, particularly when the
district court imposes a sentence within a properly calculated
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guideline range. United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006).
The probation officer determined that York’s guideline
range was 92 to 115 months based on an offense level of twenty-
three and criminal history category VI. Because York had
accumulated twenty-one criminal history points even though many
of his convictions were not counted, and he had failed to ever
obtain stable employment, the probation officer recommended a
sentence at the high end of the guideline range to run
consecutive to York’s undischarged term of state imprisonment he
was then serving for unrelated conduct. The probation officer
also noted an upward departure under USSG § 4A1.3(a)(1) may be
warranted; the projected release date on his undischarged state
sentence was August 3, 2010; and that under USSG § 5G1.3(c), the
district court could order that his sentence run concurrent,
partially concurrent, or consecutive to the state sentence to
achieve a reasonable punishment for the instant offense.
At sentencing, York withdrew his only objection to the
presentence report. The district court adopted the guideline
calculations and invited York to present “any other factors” he
wanted to present. York acknowledged he had an extensive
criminal history and noted it was impacting not only the time he
was then serving but also the instant charge by bringing his
guideline range close to the statutory maximum of 120 months.
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Counsel argued that a letter written by York demonstrated that
he was “trying to make amends and direct himself to learning
some new vocations and habits,” and he requested that the
district court consider the “lower end” of the guidelines
“knowing full well he must serve the state court sentence and
then he must start serving the federal court sentence.”
The Government argued that there were grounds for an
upward departure under USSG § 4A1.3(a)(1) because York began
committing crimes at the age of seventeen and consistently
continued to commit offenses; and even though he was not
assessed criminal history points for many of his crimes, he had
well above the number of points needed for a criminal history
category VI. In lieu of departing upward, the Government
requested that the district court sentence York at the highest
end of his guideline range and run the sentence consecutive to
his undischarged state sentence for an unrelated offense. After
the Government spoke, the district court asked York if he had
anything further, and he responded, “No, Your Honor. Again, the
focus of the request to the Court is the same and hope the Court
would look at any possibility of concurrent sentences.”
The district court sentenced York at the lower end of
his 92 to 115-month guideline range to 100 months in prison
consecutive to his undischarged state prison term for unrelated
conduct, explaining that this sentence was “sufficient, but not
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greater than necessary, to meet the sentencing objectives of
punishment and deterrence in this case.” In arriving at this
sentence, the court explained it had taken “the guidelines into
account on an advisory basis”; had “taken into account the
Government’s position paper in this case to the extent the
Defendant would be subject to an upward departure should the
Court be inclined to do so given Defendant’s extensive criminal
history record”; and had taken “all matters into account,
including reviewing the presentence report with respect to the
Defendant’s history and characteristics and as well as reviewing
the Defendant’s own letter where he expresses remorse.”
On appeal, York argues that the district court erred
in applying the sentencing guidelines, and that his sentence is
procedurally and substantively unreasonable, because the
district court did not explicitly consider or discuss the policy
statement and accompanying factors set out in the commentary
pursuant to 18 U.S.C. § 3553(a)(5); USSG § 5G1.3(c) when it
ordered that his sentence run consecutive to his undischarged
state sentence. Because York neither cited the policy statement
in the district court nor argued that the district court should
run the instant sentence concurrent to his undischarged state
prison term based on the policy statement, we review his
procedural sentencing claims for plain error. See United States
v. Lynn, 592 F.3d 572 (4th Cir. 2010); United States v. Rouse,
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362 F.3d 256 (4th Cir. 2004). As we explained in Lynn, a party
is not required to lodge an explicit objection after the
district court’s explanation to preserve a claim that the court
provided inadequate explanation for its sentence. Rather, “[b]y
drawing arguments from § 3553 for a sentence different than the
one ultimately imposed, an aggrieved party sufficiently alerts
the district court of its responsibility to render an
individualized explanation addressing those arguments, and thus
preserves its claim.” Lynn, 592 F.3d at 578. However, “lodging
one specific claim of procedural sentencing error before the
district court, e.g., relying on certain § 3553 factors, does
not preserve for appeal a different claim of procedural
sentencing error, e.g., relying on different § 3553 factors.”
Id. at 579 n.4. Since York did not cite the policy statement in
the district court or argue that the instant sentence should run
concurrent to his undischarged sentence based on the policy
statement, he did not preserve his procedural sentencing claims.
Therefore, York must show that the district court’s
explanation in this case constituted plain error affecting his
substantial rights. See United States v. Massenburg, 564 F.3d
337, 342-43 (4th Cir. 2009). We conclude that York has not made
this showing. We further conclude that York’s sentence is not
substantively unreasonable. Based on its consideration of all
matters, including its review of the presentence report, York’s
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own letter expressing remorse, and the Government’s argument
that York’s extensive criminal history warranted an upward
departure, the district court granted York’s request for a
lower-end guideline sentence, rejected the Government’s request
for a high-end guideline sentence, but granted its request to
impose the sentence consecutive to York’s undischarged state
sentence. This decision was consistent with USSG § 5G1.3(c), as
it resulted in a reasonable punishment for the instant offense.
We therefore 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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