UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEE ADAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:08-cr-00004-D-1)
Submitted: December 7, 2010 Decided: January 3, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Slade C. Trabucco, THE TRABUCCO LAW FIRM, P.A., Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to the terms of his written plea agreement,
Richard Lee Adams pleaded guilty to robbery, using and carrying
a firearm during a crime of violence, and possession of a
firearm by a convicted felon. The district court granted the
Government’s motion to depart from the advisory Guidelines range
under inter alia U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.3(a)(1) (2008). The court then sentenced Adams to a total
of 240 months in prison. Counsel for Adams has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that, in his view, there are no meritorious issues, but
questioning whether the district court committed clear error by
granting the Government’s motion for an upward departure under
USSG § 4A1.3. Although advised of his right to file a pro se
supplemental brief, Adams has not done so. For the following
reasons, we affirm.
In assessing a sentencing court’s decision to depart
from a defendant’s Guidelines range, 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. McNeill, 598 F.3d 161, 166 (4th Cir.) (internal
quotation marks omitted), petition for cert. filed, __ U.S.L.W.
__ (U.S. July 2, 2010) (No. 10-5258). Under USSG § 4A1.3(a)(1),
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a court may depart upward based upon its determination that the
calculated criminal history category substantially
underrepresents either the seriousness of the defendant’s past
criminal conduct or the likelihood that the defendant will
commit other crimes. In the background commentary, the
Sentencing Commission recognized that an upward departure may be
appropriate for “younger defendants (e.g., defendants in their
early twenties or younger) who are more likely to have received
repeated lenient treatment, . . . [as they] may actually pose a
greater risk of serious recidivism than older defendants.” USSG
§ 4A1.3, p.s., cmt. (backg’d). In choosing the appropriate
criminal history category for departure, the court should use
“as a reference, the criminal history category applicable to
defendants whose criminal history or likelihood to recidivate
most closely resembles that of the defendant’s.” USSG
§ 4A1.3(a)(4)(A).
Adams does not identify on what basis the district
court may have erred in imposing a departure under § 4A1.3. We
conclude that the district court made specific findings of fact
and relied on appropriate factors in determining that a
departure was warranted. Adams was twenty-one years old at the
time of his sentencing, and the district court determined that
he had a history of violent behavior and had repeatedly failed
to perform well during his previous probationary sentences.
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Moreover, certain of Adams’ prior convictions were consolidated,
resulting in a more lenient sentence. In addition, the district
court noted that Adams was a gang member and had a number of
institutional infractions.
Reliance upon the defendant’s continued criminal
conduct during incarceration and supervised release, which
demonstrates that the criminal justice system had previously
failed to deter, is a proper basis for a USSG § 4A1.3 departure.
See McNeill, 598 F.3d at 166. In addition, the court correctly
relied upon Adams’ relatively young age and relatively long
history of “poor interaction with the criminal justice system.”
Accordingly, we find that the district court acted reasonably in
granting the departure.
Next, we must consider the reasonableness of the
extent of the departure. Here, in accordance with the
Guidelines’ instructions, the district court determined that the
criminal history of Category VI defendants most closely mirrored
Adams’ criminal background. Adams did not contend below or on
appeal that his criminal history was not substantially similar
to Category VI defendants. Accordingly, we find that the
district court reasonably increased Adams’ Criminal History
Category from IV to VI.
Pursuant to Anders, we have examined the entire record
in this case, and we have found no meritorious issues for
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appeal. Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client 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 the client. 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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