UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4352
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD HAYHURST,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:09-cr-00022-REM-1)
Submitted: October 29, 2010 Decided: November 15, 2010
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Betsy C. Jividen, United States
Attorney, Zelda E. Wesley, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Richard Hayhurst pled
guilty to possession of firearms by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). The
district court sentenced Hayhurst within the advisory guidelines
range to twenty months’ imprisonment. Hayhurst appeals his
sentence, arguing that the district court erred by denying his
request for a downwardly variant sentence. For the reasons that
follow, 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). In conducting
this review, we first determine whether the district court
committed any “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant § 3553(a) factors
to the specific circumstances of the case before it.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
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quotation marks and emphasis omitted). The court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” this Court
that it has “considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.” Id. (internal quotation marks omitted).
If the sentence is free from procedural error, we then
review it for substantive reasonableness. Gall, 552 U.S. at 51.
“Substantive reasonableness review entails taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51). Even if this Court would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal
of the district court.’” Id. at 474 (quoting Gall, 552 U.S. at
51).
Hayhurst does not dispute that his guidelines range
was properly calculated. He argues that his sentence is
substantively unreasonable because the district court refused to
downwardly vary from the guidelines range.
We apply an appellate presumption that a sentence
imposed within the properly calculated guidelines range is
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
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(upholding appellate presumption of reasonableness for within-
guidelines sentence). In rejecting Hayhurst’s request for a
downward variance, the district court considered the § 3553
sentencing factors and determined that they were best served by
the imposition of a within-guidelines sentence. Furthermore,
the court emphasized that a variance was not warranted based on
Hayhurst’s criminal history and the particular circumstances of
this case, namely that Hayhurst took the opportunity to steal
one of the weapons in question from his neighbors’ home when
they had called upon him for help during a family emergency.
Under these circumstances, we conclude that the district court
did not abuse its discretion and that Hayhurst’s sentence is
reasonable.
For these reasons, we affirm Hayhurst’s sentence. 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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