UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RALPH ANTHONY ROSEBORO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00005-RJC-DCK-1)
Submitted: October 29, 2010 Decided: November 18, 2010
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Ross H. Richardson, Assistant Federal Defender, Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Anthony Roseboro was convicted of one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2006). This court remanded for resentencing
after finding that he should not have been sentenced as an armed
career criminal. See United States v. Roseboro, 551 F.3d 226
(4th Cir. 2009). At resentencing, the district court found that
under the properly calculated advisory Sentencing Guidelines,
Roseboro’s range of imprisonment was fifty-seven to seventy-one
months. The court then determined that based upon the need for
deterrence, to promote respect for the law and to protect the
public from Roseboro’s criminal conduct, an upward variance to
108 months’ imprisonment was appropriate. On appeal, Roseboro
challenges both the decision to impose an upward variance and
the degree of the variance. We affirm.
This court reviews Roseboro’s sentence “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, the
court:
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence – including
an explanation for any deviation from the Guidelines
range.
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Id. at 51.
“When rendering a sentence, the district court must
make an individualized assessment based on the facts
presented[,] . . . apply[ing] the relevant [18 U.S.C.]
§ 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 quotation marks omitted). The court also
must “state in open court the particular reasons supporting its
chosen sentence . . . [and] set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decision
making authority.” Id. (internal quotation marks omitted).
If a sentence is found procedurally reasonable, this
court then considers substantive reasonableness. Gall, 552 U.S.
at 51. In conducting this review, the court examines “the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the degree of the
variance.” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (citation and internal quotation marks omitted).
There was no error in the district court’s reliance on
Roseboro’s criminal history when it determined that under 18
U.S.C. § 3553(a), an upward variance was warranted. See United
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States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United
States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007) (allowing
variances based on factors taken into account by the
Guidelines). We further conclude that the court did not abuse
its discretion in imposing a 108-month sentence. The court
sufficiently justified the degree of the variance. See Evans,
526 F.3d at 161.
Accordingly, 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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