UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4697
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CECIL GEORGE ELSWICK, JR., a/k/a George C. Elswick,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:09-cr-00053-sgw-1)
Submitted: March 30, 2011 Decided: April 11, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, R. Andrew Bassford,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Cecil George Elswick, Jr. pled guilty to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006), and unauthorized wearing of the
uniform of an officer of the United States Army, in violation of
18 U.S.C. § 702 (2006). On appeal, Elswick argues the district
court abused its discretion when it imposed a forty-two month
sentence, which was an upward variance from his fifteen-to-
twenty-one month advisory Guidelines sentencing range. For the
reasons explained below, we affirm the district court’s
judgment.
First, Elswick, relying on United States v. Moreland,
437 F.3d 424, 432 (4th Cir. 2006), maintains the district court
erred by failing to determine whether a departure sentence was
appropriate in this case before considering the imposition of a
variant sentence and urges us to treat his sentence as a
departure. Elswick’s argument is foreclosed by our recent
opinion in United States v. Diosdado-Star, 630 F.3d 359 (4th
Cir. 2011).
In Diosdado-Star, we recognized that, to the extent
that Moreland requires a district court to first consider a
departure before deciding whether to vary from the guidelines
range, Moreland was overruled by the Supreme Court’s decisions
in Gall v. United States, 552 U.S. 38 (2007), and Rita v. United
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States, 551 U.S. 338 (2007). See Diosdado-Star, 630 F.3d at 366
(“[A]s recognized in Evans, we find that Gall and Rita were
superseding contrary decision[s] of the Supreme Court that
implicitly overruled the effect, if any, of the language in
Moreland . . . that the district court should first look to
whether departure is appropriate before varying.”) (internal
quotation marks and citation omitted). Accordingly, we conclude
the district court acted within its discretion when it imposed a
variant, rather than departure, sentence.
Next, Elswick argues the district court erred by
failing to incrementally depart and explain its incremental
departure from the Guidelines sentencing range. See United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) (“[E]ven
where an upward departure . . . is plainly warranted, a
sentencing court must depart incrementally, explaining the
reasons for its departure.”). However, this requirement for
departures does not apply here because, as discussed above, the
district court did not impose a departure sentence.
Accordingly, this argument is without merit.
Finally, Elswick argues his forty-two month sentence
is substantively unreasonable. Upon appellate review of the
substantive reasonableness of a sentence, this Court takes “into
account the ‘totality of the circumstances, including the extent
of any variance from the Guidelines range.’” United States v.
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Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552
U.S. at 51). Here, the totality of the circumstances amply
support the district court’s significant upward sentencing
variance. The record establishes Elswick has a well-documented,
longstanding history of criminal behavior involving fraud,
forgery, and passing bad checks. The district court’s variant
sentence — although a significant deviation from Elswick’s
advisory Guidelines sentencing range — was carefully crafted to
take these facts into consideration.
We conclude Elswick’s sentence is reasonable and 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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