UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4736
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN SAUNDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00041-HEH-2)
Submitted: September 30, 2010 Decided: November 9, 2010
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David P. Morgan, Richmond, Virginia, for Appellant. Michael
Arlen Jagels, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Saunders pled guilty to two counts of
distribution of heroin, and was sentenced to a term of 45
months’ incarceration. Saunders appealed, and counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that in his view there are no meritorious grounds for
appeal, but questioning whether Saunders’ sentence was
reasonable. Saunders was informed of his right to file a pro se
supplemental brief but has not done so. We affirm.
We review Saunders’ sentence for abuse of discretion.
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 errors. United States v.
Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.
476 (2008). Significant procedural errors include “‘failing to
calculate (or improperly calculating) the Guidelines range,
. . . failing to consider the [18 U.S.C.] § 3553(a) factors,
. . . or failing to adequately explain the chosen sentence--
including an explanation for any deviation from the Guidelines
range.’” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009) (quoting Gall, 552 U.S. at 51). We then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51. When
reviewing a sentence on appeal, we presume a sentence within the
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properly-calculated Guideline range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Here, the district court departed upward in
calculating the applicable Guideline range, on the ground that
Saunders’ criminal history category under-represented the
seriousness of his criminal history. USSG § 4A1.3(a). When
reviewing a departure, we consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Under
USSG § 4A1.3(a)(1), “[i]f reliable information indicates that
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, an upward departure may be warranted.”
We have reviewed the record and conclude that the
district court’s decision to depart upward was procedurally and
substantively reasonable. The record reveals that Saunders had
a criminal history category of VI, which did not take into
account approximately 26 of his prior convictions. Saunders’
most recent offenses were committed only four months after he
served a two-year term for violating probation. The court noted
that Saunders’ criminal activity over the years was virtually
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unabated, that there was a strong likelihood that it would
continue upon his release, and that prior shorter terms had not
effectively deterred his criminal conduct. Thus the court
properly concluded that an upward departure from criminal
history category VI was warranted, and proceeded to employ the
proper methodology for recalculating Saunders’ advisory range to
41 to 51 months. See USSG § 4A1.3(a)(4)(B).
In addition, the extent of the departure was
reasonable. As we have noted, the two-year term completed by
Saunders only a few months before he committed the instant
offenses clearly was insufficient to deter him from further
criminal acts. The Guidelines sentencing range of 9 to 15
months was insufficient to reflect the seriousness of his
criminal history, or the likelihood that he would commit future
crimes. We therefore conclude that the extent of the district
court’s departure was reasonable. Further, the district court
considered the parties’ arguments and relevant § 3553(a)
factors, including Saunders’ history and characteristics and the
need for the sentence to protect the public, and reasonably
imposed a sentence in the middle of the recalculated advisory
range. We accordingly conclude that Saunders’ sentence is both
procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Saunders in writing of
his right to petition the Supreme Court of the United States for
further review. If Saunders requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Saunders. Finally, we deny Saunders’ second
motion for an extension of time in which to file a pro se
supplemental brief and 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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