UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4572
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY PATRICK FRYE,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00291-DCN-1)
Submitted: February 25, 2011 Decided: March 17, 2011
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Nick Bianchi, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Patrick Frye pled guilty without a plea
agreement to seven counts of bank robbery, in violation of
18 U.S.C. § 2113(a) (2006). The district court calculated
Frye’s Guidelines range under the U.S. Sentencing Guidelines
Manual (“USSG”) (2009) at 151 to 188 months’ imprisonment,
departed upward pursuant to USSG § 4A1.3(a), p.s., and sentenced
Frye to seven concurrent terms of 240 months’ imprisonment. On
appeal, Frye argues that the district court erred in imposing
his sentence. We affirm.
When determining a sentence, the district court must
calculate the appropriate advisory Guidelines range and consider
it in conjunction with the factors set forth at 18 U.S.C.
§ 3553(a) (2006). Gall v. United States, 552 U.S. 38, 51
(2007). Appellate review of a sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” is for
abuse of discretion. Id. at 41.
Frye challenges the district court’s decision to
impose the upward departure. A district court may depart upward
from the Guidelines range under USSG § 4A1.3(a), p.s., when “the
defendant's criminal history category substantially under-
represents the seriousness of the defendant's criminal history
or the likelihood that the defendant will commit other crimes.”
USSG § 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d
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326, 341 (4th Cir. 2008) (noting that an under-representative
criminal history category is an encouraged basis for departure).
In determining whether a departure sentence is
appropriate in such circumstances, the Guidelines state that a
court may consider prior sentences not used in the criminal
history calculation, prior sentences of “substantially more than
one year” for independent crimes committed at different times,
prior similar misconduct resolved by civil or administrative
adjudication, charges pending at the time of the offense, or
prior similar conduct that did not result in a conviction.
See USSG § 4A1.3(a)(2), p.s.
In this case, the record supports the district court’s
conclusion that Frye’s criminal history category failed to
reflect adequately the seriousness of his criminal history and
the likelihood of his recidivism. Frye had multiple unscored
convictions not included in his criminal history category, a
lengthy criminal history replete with recidivism, and several
arrests for conduct involving theft and fraud. Thus, the
district court did not err in imposing the departure.
Frye also claims that the district court abused its
discretion in imposing the departure sentence because the
sentence is not supported by the 18 U.S.C. § 3553(a) sentencing
factors. When reviewing the reasonableness of an upward
departure sentence, we “must give due deference to the district
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court's decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 552 U.S. at 51. “Even if we
would have reached a different sentencing result on our own,
this fact alone is ‘insufficient to justify reversal of the
district court.’” United States v. Pauley, 511 F.3d 468, 474
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Under 18 U.S.C.
§ 3553(a), the district court should consider the nature and
circumstances of the offense and the history and characteristics
of the defendant. The court should impose a sentence that
reflects the seriousness of the offense, and the need to promote
respect for the law, to provide just punishment, to afford
adequate deterrence, to protect the public from further crimes,
and to provide the defendant with adequate rehabilitation or
medical treatment.
We have reviewed the record and conclude that, in
imposing the departure sentence, the district court provided an
adequate individualized assessment of the relevant § 3553(a)
sentencing factors in relation to Frye and his criminal conduct.
The court took into consideration Frye’s prior criminal conduct,
which demonstrated a lack of respect for the law, the serious
nature of his offenses, and the need for the sentence to deter
Frye and protect the public. Although Frye argues that the
240-month sentence is unreasonable in view of his mental health
history, we afford “due deference to the district court’s
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decision that the § 3553(a) factors, on a whole, justify the
extent” of the departure. Gall, 552 U.S. at 51.
Thus, we conclude that the district court did not
abuse its discretion in sentencing Frye. 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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