UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4745
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZECHARIAH SWITZER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:09-cr-00120-D-1)
Submitted: March 23, 2011 Decided: March 31, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dennis M. Hart, Washington, D.C., for Appellant. George E. B.
Holding, United States Attorney, Jennifer P. May-Parker, Eric
Evenson, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zechariah Switzer appeals the eighty-four-month
sentence he received following his guilty plea to use and carry
of firearms during and in relation to, and possession of
firearms in furtherance of, a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (2006). In sentencing
Switzer, the district court added twenty-four months’
imprisonment to his advisory sentencing range, which was the
statutory mandatory minimum term of sixty months. See 18 U.S.C.
§ 924(c)(1)(A)(i); U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.4(b) (2009). For the following reasons, we reject
Switzer’s arguments on appeal and affirm.
Switzer first posits that, in sentencing him above the
Guidelines range, the court upwardly departed pursuant to USSG
§ 2K2.4 cmt. n.2(B) (2009), and relied on its finding that
Switzer committed perjury at sentencing to enhance his sentence
pursuant to USSG § 3C1.1. In doing so, Switzer argues, the
district court failed to provide him notice of its intent to
depart, as required by Fed. R. Crim. P. 32(h), and the
opportunity to respond to the factual basis for the departure.
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However, the district court specifically rejected the
proposition that it was departing upward, 1 stating on the record
that it was imposing a variance sentence. Post-Booker, 2 the
district court acted within its discretion in doing so. See
generally United States v. Diosdado-Star, 630 F.3d 359, 364 (4th
Cir. 2011) (explaining that, in Rita v. United States, 551 U.S.
338 (2007), the Supreme Court “recognized that a sentencing
court has flexibility in fashioning a sentence outside of the
Guidelines range”). As we clarified in United States v. Evans
[A]dherence to the advisory Guidelines departure
provisions provides one way for a district court to
fashion a reasonable sentence outside the Guidelines
range, it is not the only way. Rather, after
calculating the correct Guidelines range, if the
district court determines that a sentence outside that
range is appropriate, it may base its sentence on the
Guidelines departure provisions or on other factors so
long as it provides adequate justification for the
deviation.
526 F.3d 155, 164 (4th Cir. 2008). Because there simply was no
departure in this case, we reject Switzer’s argument pertaining
to the alleged improprieties in the departure procedure. We
further reject Switzer’s ancillary argument that the court
1
Switzer correctly identifies that USSG § 2K2.4(b) governed
his offense conduct and that Application Note 2(B) to that
guideline provides that, for sentences imposed pursuant to
subsection (b), “a sentence above the minimum term required by
18 U.S.C. § 924(c) . . . is an upward departure from the
guideline sentence.”
2
United States v. Booker, 543 U.S. 220 (2005).
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failed to make the factual findings necessary for an enhancement
pursuant to USSG § 3C1.1.
Switzer next challenges the reasonableness of his
sentence. “[N]o matter what provides the basis for a deviation
from the Guidelines range[,] we review the resulting sentence
only for reasonableness.” Evans, 526 F.3d at 164 (citing Gall
v. United States, 552 U.S. 38, 50 (2007)). In doing do, we
apply an abuse of discretion standard. Gall, 552 U.S. at 51;
see also United States v. Llamas, 599 F.3d 381, 387 (4th Cir.
2010). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Gall,
552 U.S. at 51.
In determining procedural reasonableness, this court
considers whether the district court properly calculated the
defendant’s advisory Guidelines range, considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). An
extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
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the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.’” United States v.
Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at
356) (alterations in original), cert. denied, 131 S. Ct. 165
(2010).
Switzer maintains the district court did not
individually assess his case, as evidenced by its reliance on
its finding that he lied at sentencing to impose an additional
two years of imprisonment. To be sure, the court properly
determined that Switzer’s attempt to minimize and disavow his
criminal conduct supported the variance, but it also identified
several other sentencing factors, including: Switzer’s
likelihood of recidivism; the need to impose a sentence
sufficient to deter others from engaging in similar conduct and
to protect the public from Switzer’s crimes; and that, in terms
of Switzer’s personal characteristics, Switzer did not
appreciate the seriousness of his conduct. The district court’s
explanation reflects its thorough, individualized assessment of
this case in light of the § 3553(a) factors, and was more than
adequate to support the upward variance. See United States v.
Grubbs, 585 F.3d 793, 805 (4th Cir. 2009) (opining that a
“§ 3553(a)-based[] explanation of [defendant’s] sentence
provides independent grounds for a variance sentence and
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verifies the reasonableness of the district court’s sentencing
determination”), cert. denied, 130 S. Ct. 1923 (2010).
Having determined that there is no procedural error,
we next assess the substantive reasonableness of the sentence.
This inquiry requires us to review “whether the District Judge
abused his discretion in determining that the § 3553(a) factors
supported [the sentence] and justified a substantial deviation
from the Guidelines range.” Gall, 552 U.S. at 56. In doing so,
the court must “‘take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Morace, 594 F.3d 340, 346
(4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S.
Ct. 307 (2010). We discern no abuse of discretion in the
district court’s reliance on Switzer’s misrepresentations at
sentencing and the other identified § 3553(a) factors to support
its decision to vary upward. See Diosdado-Star, 630 F.3d at
366-67 (holding sentencing court’s decision to impose a sentence
six years longer than advisory Guidelines range was reasonable,
because court employed § 3553-based reasoning to justify the
variance).
For these reasons, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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