UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5023
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN THOMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00373-FL-1)
Submitted: May 20, 2011 Decided: June 23, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Wayne Thompson pled guilty to health care fraud
and was sentenced to fifty-eight months of imprisonment. He
argues on appeal that the district court abused its discretion
by departing upward, by the extent of the departure, and by
failing to adequately explain the reasons for departing. We
find no abuse of discretion and therefore affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.
After determining whether the district court properly calculated
the defendant’s advisory Guidelines range, the appellate court
considers whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). Finally, the appeals court reviews the substantive
reasonableness of the sentence, “taking into account the
totality of the circumstances, including the extent of any
variation from the Guidelines range.” Gall, 552 U.S. at 51.
When reviewing a departure, we consider “whether the
sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
2
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). Under U.S. Sentencing Guidelines Manual § 4A1.3(a)(1)
(2010), “[i]f reliable information indicates that 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,
an upward departure may be warranted.” Additionally, upward
departures from the highest criminal history category, VI, are
specifically contemplated by the Guidelines. USSG § 4A1.3,
comment. (n.2(B)).
Here, the district court’s decision to depart upwardly
was reasonable. The district court found that, because of
Thompson’s repeated and numerous offenses of obtaining
prescription pain medication by fraud, an upward departure was
warranted based on an “increased risk of recidivism, [and] the
need to protect the public.” The court stated that Thompson’s
repeated conduct evidenced by his criminal history led her to
believe that an 18 to 24 month sentence was insufficient to
prevent Thompson from returning “to doing exactly what he’s done
for just about all of his life.” The court therefore concluded
that an upward departure was warranted to account for the
seriousness of his criminal history and the likelihood that he
would commit other crimes. Moving incrementally down the
3
sentencing table the court found that the 57 to 71 month range,
at offense level 17, appropriately accounted for the seriousness
of Thompson’s criminal history and the likelihood of him
committing other crimes. After hearing argument from the
parties and considering the § 3553(a) factors, the district
court sentenced him to 58 months imprisonment, an upward
departure from the 18 to 24 month advisory Guidelines range. We
conclude that the district court did not abuse its discretion in
determining that a departure was warranted.
In addition, we conclude the extent of the district
court’s departure was reasonable. In determining the extent of
a departure under USSG § 4A1.3, the district court must use an
incremental approach. See USSG § 4A1.3(a)(4)(A); United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). The
incremental approach requires the district court to refer first
to the next higher category and explain why it fails to reflect
the seriousness of the defendant’s record before considering a
higher category. See United States v. Rusher, 966 F.2d 868, 884
(4th Cir. 1992).
The court appropriately employed the methodology
required by USSG § 4A1.3, p.s., for crafting an upward
departure. Having found Thompson’s offense level of 8 was
inadequate, the district court “mov[ed] incrementally down the
sentencing table to the next higher offense level in Criminal
4
History Category VI until it [found] a guideline range
appropriate to the case.” USSG § 4A1.3(a)(4)(B), p.s. The
district court specifically found that offense levels 9 through
16 were not adequate to reflect the seriousness of the
defendant’s criminal history or the likelihood that he will
commit future crimes.
We conclude the district court’s decision to depart
under § 4A1.3 was factually supported and that the resulting
sentence was reasonable. Moreover, the court adequately
explained its reasons for the departure. We therefore affirm
Thompson’s sentence. 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
5