United States v. Sanders

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5088

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ZARQUROUS LEQUIS SANDERS, a/k/a Carwright,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00332-HEH-3)

Submitted: January 25, 2011 Decided: February 11, 2011

Before KING, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Michael R. Gill, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Zarqurous Lequis Sanders appeals his 137-month prison

sentence after pleading guilty to conspiracy to obstruct, delay,

and affect commerce by robbery, in violation of 18 U.S.C.

§ 1951(a) (2006), and bank robbery, in violation of 18 U.S.C.

§§ 2, 2113(a) (2006). On appeal, Sanders contends that his

sentence is unreasonable because it is greater than necessary to

achieve the purposes of sentencing. We affirm.

We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard. See 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 error, such as improperly calculating

the guideline range, failing to consider the 18 U.S.C. § 3553(a)

(2006) factors, or failing to adequately explain the sentence.

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We

then consider the substantive reasonableness of the sentence

imposed taking into account the totality of the circumstances,

including the extent of any variance, but giving due deference

to the district court’s decision that the § 3553(a) factors

justify the extent of the variance. Gall, 552 U.S. at 51. When

we review a sentence outside the advisory guideline range —

whether as a product of a departure or a variance — we consider

whether the district court acted reasonably both with respect to

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its decision to impose such a sentence and with respect to the

extent of the divergence from the range. United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).

Sanders agreed to a stipulated statement of facts in

which he admitted that he committed eight bank robberies. Based

on the stipulated robberies, the probation officer determined

the combined offense level was twenty-eight by adding five

levels for more than five units pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 3D1.4 (2008). With a three-level

reduction for acceptance of responsibility, Sanders’s total

offense level was twenty-five; and with his criminal history

category IV, his advisory guideline range was 84 to 105 months

in prison. Neither party objected to the presentence report,

and the district court adopted its findings and calculations.

The Government moved for an upward departure or

variance, contending that the advisory guideline range did not

adequately address Sanders’s conduct or criminal history, and

his criminal history category should be raised two levels from

IV to VI resulting in a sentencing range of 110 to 137 months.

Specifically, the Government asked for a one-level increase to

account for the uncounted robberies pursuant to USSG § 3D1.4

cmt. background, and another one-level increase under USSG

§ 4A1.3(a)(2) because three of Sanders’s six prior felonies were

not assigned criminal history points and his criminal history

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category substantially underrepresented the seriousness of his

criminal history and the likelihood that he would commit other

crimes. Sanders argued the Government was asking the district

court to second-guess the Sentencing Commission and the judge

who gave him a suspended sentence on four of his felonies.

The district court granted the Government’s motion and

sentenced Sanders at the top of the new range to 137 months in

prison. The court found that Sanders’s bank robbery spree

involved eight banks and $151,342, took place in five separate

states over a thirty-seven day period, and Sanders committed the

first robbery only six months after being released from prison.

The court noted commentary accompanying USSG § 3D1.4 provided

that a departure would be warranted in the unusual case where

additional offenses resulted in a total of significantly more

than five units, and the court found that the facts and

circumstances of this bank robbery spree were atypical.

Moreover, the district court found that the guidelines

as calculated did significantly underrepresent Sanders’s

criminal history and likelihood that he would commit other

crimes. He had six other prior felony convictions, five of

which were for offenses committed as recently as 2006, but he

received no criminal history points for three of them. When he

committed the bank robberies, he was on a suspended sentence,

and the court found his prior sentences had failed to promote

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respect for the law, provide for deterrence, or protect the

community. The court furthermore found the advisory guideline

range failed to serve the sentencing factors under § 3553(a).

Based on Sanders’s sustained history of criminal

activity, the number of convictions for which no criminal points

were assessed, his likelihood of continuing criminal activity,

failure of prior periods of incarceration, and the seriousness

and scope of the series of offenses before the court, the court

found the advisory guideline range failed to promote respect for

the law, provide for deterrence, and account for the nature and

circumstances of the underlying offense. In determining an

appropriate range and sentence, the court separately reviewed

the ranges for an offense level twenty-five and criminal history

category IV and V, and found each to be inadequate. The court

determined that a range of 110 to 137 months, and a sentence of

137 months, were each adequate but not longer than necessary to

achieve the sentencing objectives under § 3553(a).

After reviewing the record and giving due deference to

the district court’s decision, we conclude that the district

court did not abuse its discretion, and Sanders’s sentence is

both procedurally and substantively reasonable. The district

court acted reasonably both with respect to its decision to

sentence Sanders outside his advisory guideline range, and with

respect to the extent of its divergence from that range.

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 We therefore 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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