UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4150
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRELL HALL,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cr-00435-CCB-1)
Submitted: November 18, 2010 Decided: December 9, 2010
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lauren E. Case, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, A. David Copperthite,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Hall appeals the above-Guidelines seventy-two-
month sentence imposed following his guilty plea to one count of
threatening an arson, in violation of 18 U.S.C. § 844(e) (2006),
and one count of witness tampering, in violation of 18 U.S.C.A.
§ 1512(b)(1) (West 2000 & Supp. 2010). On appeal, Hall contends
that the district court imposed a procedurally and substantively
unreasonable sentence. Specifically, Hall argues that his
sentence is procedurally unreasonable because the district court
(1) styled its deviation from the U.S. Sentencing Guidelines
Manual (“the Guidelines”) as a variance in order to avoid the
notice provisions of Federal Rule of Criminal Procedure 32(h)
(“Rule 32(h)”); (2) failed to explain why a Guidelines sentence
was inappropriate; and (3) failed to address a nonfrivolous
argument made by defense counsel that Hall’s military experience
had negatively affected him. Additionally, he contends that his
sentence is substantively unreasonable because the district
court considered aggravating factors that had already been
accounted for under the Guidelines. Finding no reversible
error, we affirm.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 45 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010) (abuse of discretion standard of
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review applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
[18 U.S.C.] § 3553[(a) (2006)] for a sentence different than the
one ultimately imposed”). First, we review the sentence for
significant procedural error, examining the record for
miscalculation of the Guidelines range, the treatment of the
Guidelines as mandatory, failure to consider the § 3553(a)
factors, the selection of a sentence based on clearly erroneous
facts, and failure to adequately explain the chosen sentence and
any deviation from the Guidelines. Gall, 552 U.S. at 51.
We hold that the district court committed no
procedural error, calculating the proper advisory Guidelines
range, considering the § 3553(a) factors and the appropriate
facts, and thoroughly explaining Hall’s sentence and its upward
variance. The district court was not required to provide notice
of its upward variance. Rule 32(h) requires that notice be
provided before a sentencing court departs from the applicable
Guidelines range on a ground not identified in the presentence
report or a party’s prehearing submission. “Departure,” however
is a term of art, “refer[ring] only to non-Guidelines sentences
imposed under the framework set out in the Guidelines.”
Irizarry v. United States, 553 U.S. 708, 714 (2008). The notice
requirement does not apply to § 3553 variances. Id. Here, the
district court’s deviation from the Guidelines was
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unquestionably a variance, as the court based its decision on a
thorough consideration of the § 3553(a) factors, not the
Guidelines. Thus, the district court was not required to
provide advance notice of its intent to vary from the applicable
Guidelines range.
We hold further that the district court’s explanation
was more than sufficient to preclude a finding of procedural
error. A sentencing court must “state in open court” the
particular reasons that support its chosen sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
court’s explanation, however, need not be exhaustive; it merely
must be “sufficient ‘to satisfy the appellate court that [the
district court] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.’” United States v. Boulware, 604 F.3d 832, 837 (4th
Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)). Here, it is apparent from the district court’s
explanation that it considered both parties’ arguments and had a
reasoned basis for its decision to vary from the Guidelines.
Moreover, in response to defense counsel’s argument, the court
discussed extensively Hall’s military background, concluding
that a longer sentence and “a very structured situation” might
help Hall learn to control his anger, especially in light of any
possible post-traumatic stress disorder (“PTSD”). Accordingly,
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we conclude that the district court adequately explained its
chosen sentence and responded to defense counsel’s nonfrivolous
arguments for a different sentence and, therefore, committed no
procedural error.
Because we hold that the sentence is procedurally
reasonable, we next examine the substantive reasonableness of
the sentence, considering the totality of the circumstances.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). “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). While we presume that a sentence
within the Guidelines range is reasonable, we do not presume
that a sentence outside the Guidelines range is unreasonable.
Gall, 552 U.S. at 51.
Hall claims that the district court’s stated reasons
do not justify the imposition of an above-Guidelines sentence.
In light of Hall’s violent tendencies – as evidenced by his
criminal history, the seriousness of the present offense, and
the effect of his military service – and the court’s careful
discussion of its reasons for the upward variance, we conclude
that the court was justified in sentencing Hall to an above-
Guidelines sentence. Thus, we hold that the district court did
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not abuse its discretion and did not impose a substantively
unreasonable sentence.
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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