UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4409
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HAYWOOD HOUCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00127-D-2)
Submitted: April 15, 2014 Decided: May 28, 2014
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, THE LAW OFFICES OF DENZIL H. FORRESTER,
Charlotte, North Carolina, for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Haywood Houck pleaded guilty pursuant to a plea
agreement to conspiracy to distribute and possess with intent to
distribute 100 grams or more of heroin, in violation of
21 U.S.C. § 846. The district court calculated Houck’s
Guidelines range as sixty to seventy-one months’ imprisonment.
It then applied an upward departure under U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 4A1.3 and sentenced Houck to
ninety months’ imprisonment. On appeal, Houck’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but questioning whether the district court erred in applying the
upward departure. Houck was informed of his right to file a pro
se supplemental brief, but he has not done so. The government
declined to file a brief. We affirm.
I.
This court’s review of a district court’s decision to apply
an upward departure is limited to ensuring that it “acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from
the sentencing range.” United States v. McNeill, 598 F.3d 161,
166 (4th Cir. 2010) (internal quotation marks omitted). The
Sentencing Guidelines allow a district court to depart upwardly
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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.”
U.S.S.G. § 4A1.3(a)(1). In determining whether a departure is
appropriate under the Guidelines, a court may consider, among
other things, prior sentences not used in the criminal history
calculation. See U.S.S.G. § 4A1.3(a)(2).
A.
On appeal, counsel questions whether the district court
should have relied on Houck’s unscored state convictions to
upwardly depart, as there was no evidence that those convictions
were felonies under federal law. Because counsel did not raise
this objection before the district court, we review for plain
error. See United States v. Lynn, 592 F.3d 572, 576-77 (4th
Cir. 2010).
A district court may depart under U.S.S.G. § 4A1.3(a)(1)
based on prior convictions not used in the computation of a
defendant’s criminal history category irrespective of whether
those convictions were punishable by prison terms exceeding one
year. See U.S.S.G. § 4A1.3(a)(2)(A).
In deciding to upwardly depart, the district court below
relied on information in the PSR indicating that Houck had
sustained six unscored state convictions that were not included
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in his criminal history calculation. The court also noted that
Houck had a lengthy criminal record and a history of recidivism.
As Houck made no affirmative showing that the information in the
PSR was incorrect, the court was free to adopt and rely on it to
impose the upward departure. See United States v. Randall, 171
F.3d 195, 210-11 (4th Cir. 1999); United States v. Love, 134
F.3d 595, 606 (4th Cir. 1998).
B.
Counsel also suggests that Houck should not have been
sentenced based solely on the information in the PSR. Counsel
emphasizes Houck’s robust employment history, the eight-year
break in Houck’s criminal record, and Houck’s statements that he
had no plans to return to drug trafficking after his release
from prison.
To the extent counsel emphasizes these issues as part of
his contention that the district court erred in relying on the
information in the PSR, we reject this argument as meritless.
To the extent counsel is suggesting that the district court
erred in applying the upward departure in light of Houck’s
personal circumstances, we likewise reject this argument.
Before imposing the upward departure, the court considered the
break in criminal conduct and Houck’s employment history. But
it was also entitled to consider the fact that Houck repeatedly
returned to criminal conduct, and that he had numerous
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convictions for conduct similar to the instant conspiracy
offense. This history provided a reasonable basis for the
district court to upwardly depart.
II.
In accordance with Anders, we have reviewed the remainder
of the record in this case and have found no meritorious issues
for appeal. We therefore affirm the district court’s judgment.
We also deny without prejudice counsel’s motion to withdraw.
This court requires that counsel inform Houck, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Houck requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Houck.
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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