UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4338
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL DEVON ARTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00342-D-1)
Submitted: January 27, 2014 Decided: February 12, 2014
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North
Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Joel Devon Artis appeals the thirty-six-month sentence
imposed after he pled guilty, pursuant to a plea agreement, to
one count of possession with intent to distribute a quantity of
marijuana, cocaine, heroin, Benzylpiperazine (BZP),
Trifluoromethylphenylpiperazine (MDPPP), and
Methylenediozpyrovalerone (MDPV), in violation of 21 U.S.C.
§ 841(a)(1) (2012). On appeal, Artis argues that the district
court erred in upwardly departing pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 4A1.3 (2012). Specifically, Artis
argues that the court engaged in impermissible double counting
when the conduct that served as the basis for the departure was
also used to impose a three-level enhancement pursuant to USSG
§ 3C1.3 because he committed the offense while on release
pending sentencing in another case. We affirm.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal citation and quotation marks omitted), cert. denied,
133 S. Ct. 274 (2012). In evaluating procedural reasonableness,
this court considers whether the district court properly
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calculated the defendant’s advisory Guidelines range, gave the
parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) (2012) factors, selected a
sentence supported by the record, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 49-51.
In reviewing any sentence outside the Guidelines
range, the appellate court must give due deference to the
sentencing court’s decision because it has “flexibility in
fashioning a sentence outside of the Guidelines range,” and need
only “set forth enough to satisfy the appellate court that it
has considered the parties’ arguments and has a reasoned basis”
for its decision. United States v. Diosdado-Star, 630 F.3d 359,
364 (4th Cir. 2011). If the sentence is free of procedural
error, the court reviews it for substantive reasonableness,
taking into account the totality of the circumstances. Gall,
552 U.S. at 51.
Section 4A1.3 authorizes an upward departure when
“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.” USSG § 4A1.3(a)(1), p.s.
The types of information that may support an upward departure
include “[w]hether the defendant was pending trial or sentencing
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on another charge at the time of the instant offense.” USSG
§ 4A1.3(a)(2)(D).
“Double counting occurs when a provision of the
Guidelines is applied to increase punishment on the basis of a
consideration that has been accounted for by application of
another Guideline provision or by application of a statute.”
United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).
“[T]here is a presumption that double counting is proper where
not expressly prohibited by the guidelines.” United States v.
Hampton, 628 F.3d 654, 664 (4th Cir. 2010). Section 4A1.3
contains no language addressing, much less prohibiting, double
counting. See United States v. Rivera-Santana, 668 F.3d 95, 102
(4th Cir. 2012) (rejecting argument that district court
impermissibly triple counted in departing under USSG § 4A1.3
because that section does not prohibit double or triple
counting). We conclude that the district court did not engage
in impermissible double counting and Artis’s arguments are
without merit.
Accordingly, we affirm Artis’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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