UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4984
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN L. GAYLES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00438-HEH-1)
Submitted: August 26, 2010 Decided: September 17, 2010
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Kevin C. Nunnally, Special Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin L. Gayles was convicted by a jury of possessing
five grams or more of cocaine base (crack), in violation of 21
U.S.C.A. § 844 (West 1999 & Supp. 2010). The district court
departed above the sentencing guideline range under U.S.
Sentencing Guidelines Manual § 4A1.3, p.s. (2008), and sentenced
Gayles to a term of 180 months imprisonment. Gayles appeals his
sentence, contending that the district court erred in denying
his motion for a downward departure and granting the
government’s upward departure motion. He also argues that the
sentence is unreasonable because it is greater than necessary
and failed to provide for his needs. We affirm.
Gayles had thirty-four criminal history points
resulting from two prior state convictions for cocaine
trafficking and numerous other offenses, but he had received
consistently lenient sentences. Gayles had recently been tried
and acquitted of first degree murder; the jury convicted him of
use of a firearm in connection with the murder. At Gayles’
sentencing hearing, the murder victim’s girlfriend testified
that she drove the victim to a meeting with Gayles, waited while
Gayles and the victim went behind an apartment building and
heard several shots, after which Gayles reappeared, robbed her
at gunpoint, and took her car. A detective testified that,
before he died in the hospital, the victim identified Gayles by
2
his nickname (“Black”) as the one who shot him. The district
court decided that the evidence supported a finding that Gayles
was responsible for the armed robbery and carjacking, but that
it would respect the jury’s acquittal of Gayles on the murder
charge.
The court decided that criminal history category VI
did not adequately reflect Gayles’ criminal conduct. The court
considered the guideline ranges that would result from an
increase to successively higher offense levels in criminal
history category VI, and determined that offense level 29, and a
range of 151-188 months, was adequate but not greater than
necessary to achieve the sentencing objectives set out in 18
U.S.C. § 3553(a) (2006). The court departed upward * and imposed
a sentence of 180 months imprisonment.
We review sentences for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see also United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). Procedural reasonableness review involves first
determining whether the district court properly calculated the
*
Although Gayles consistently refers to his sentence as a
variance, the court departed rather than varied above the
guideline range.
3
defendant’s advisory guideline range, then deciding whether the
district court considered the § 3553(a) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Lynn, 592 F.3d at 575; see United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized 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.”) (internal quotation marks omitted).
Finally, we review the substantive reasonableness of the
sentence, examining “the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
Here, the district court’s decision to depart above
the guideline range was adequately explained by the court and
supported by the record, given Gayles’ high criminal history
score, the fact that he had not served any significant state
sentence despite prior convictions for two drug trafficking
offenses, and the court’s finding that he had at the very least
robbed and carjacked the murder victim’s girlfriend. The court
structured the departure by increasing the offense level until
it found the appropriate guideline range, as directed in
4
§ 4A1.3(a)(4)(B). In considering the § 3553(a) factors, the
court focused primarily on the need to promote respect for the
law and to protect the community. 18 U.S.C. § 3553(a)(2)(A),
(C). The court’s explanation was sufficient under Lynn.
Gayles argues that a sentence within the guideline
range would better afford him the opportunity for drug
treatment, further education, and “other rehabilitation” to
better ensure that he would not commit other crimes upon his
release. However, the district court addressed this argument at
sentencing by noting that Gayles’ past probationary sentences
had not produced a good result, and that he would be able to
participate in drug treatment as well as educational and
vocational programs while serving his federal sentence. We
conclude that the sentence was reasonable.
We therefore affirm the sentence imposed by the
district court. 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
5