UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5191
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES THOMAS DILLARD,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00394-WO-1)
Submitted: June 29, 2010 Decided: July 20, 2010
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for
Appellant. Anna Mills Wagoner, United States Attorney, Graham
T. Green, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Thomas Dillard pled guilty, pursuant to a
written plea agreement, to one count of possession, with the
intent to defraud, of fifteen or more unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3) (2006). The
district court calculated Dillard’s advisory Guidelines range
under the U.S. Sentencing Guidelines Manual (2008) at
15 to 21 months’ imprisonment and imposed a variance sentence of
27 months’ imprisonment. Dillard timely appeals his sentence,
challenging the substantive reasonableness of the 27-month
prison term. * We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This review
entails appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 51. Dillard
challenges the 27-month prison sentence as substantively
unreasonable, but concedes its procedural reasonableness.
*
Although Dillard has completed serving his term of
imprisonment, this appeal is not moot, because Dillard is still
subject to a three-year term of supervised release. If Dillard
were to prevail on the merits of this appeal, the district court
could grant him relief by shortening or modifying the terms of
his supervised release.
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In determining whether a sentence is substantively
reasonable, we “take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. Although we presume on
appeal that a sentence within a properly-calculated Guidelines
range is reasonable, see United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007), we may not presume that a sentence outside
the Guidelines range is unreasonable, see United States v. Abu
Ali, 528 F.3d 210, 261 (4th Cir. 2008).
In reviewing a sentence outside the Guidelines range,
we may “consider the extent of the deviation, but must give due
deference to the district court’s decision that the [18 U.S.C.]
§ 3553(a) [(2006)] factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. “[A] major departure should be
supported by a more significant justification than a minor one[,]
[b]ut a district court need not justify a sentence outside the
Guidelines range with a finding of extraordinary circumstances.”
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008)
(internal quotation marks and citation omitted). Even if we
would have imposed a different sentence, this fact alone will not
justify vacatur of the district court’s sentence. Gall, 552 U.S.
at 51.
Dillard’s 27-month variant sentence is reasonable. The
district court heard counsel’s argument on the appropriate
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sentence, heard Dillard’s lengthy allocution, and thoroughly
considered relevant § 3553(a) factors, namely, Dillard’s history
and characteristics, the nature and circumstances of his offense,
and the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment. We find that the sentence was “selected pursuant to
a reasoned process in accordance with law,” and that the reasons
relied upon by the district court are plausible and justify the
sentence imposed. See United States v. Pauley, 511 F.3d 468,
473-76 (4th Cir. 2007).
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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