UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4320
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH RAY CANADY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:12-cr-00144-FL-1)
Submitted: December 18, 2014 Decided: December 22, 2014
Before SHEDD, WYNN, and THACKER, 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Affirmed by unpublished per curiam opinion.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. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Dena J. King, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Ray Canady appeals from the ninety-four-month
sentence imposed pursuant to his guilty plea to possession of a
firearm by a convicted felon. On appeal, Canady argues that his
sentence is substantively unreasonable due to the extent of the
upward departure imposed pursuant to U.S. Sentencing Guidelines
Manual § 4A1.3 (2012) (under-representation of criminal history
category). * We affirm.
We review any criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States, 552 U.S. 38, 51 (2007). When
the district court imposes a departure or variance sentence, we
consider “whether the sentencing court 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. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). The district court “has flexibility in
fashioning a sentence outside of the Guidelines range,” and need
*
Canady argues that the upward departure was overly
extensive. He does not argue that the court procedurally erred
in its decision to depart or its method for determining the
extent of the departure.
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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) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)) (alteration omitted).
Where, as here, the defendant does not challenge the
procedural reasonableness of his sentence, we review the
sentence only for substantive reasonableness, applying the
abuse-of-discretion standard. Gall, 552 U.S. at 51; United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). A district
court may depart upward from an applicable Guidelines range
“[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.” USSG
§ 4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d 326,
341 (4th Cir. 2008) (noting that an under-represented criminal
history category is an encouraged basis for departure). To
determine whether a departure sentence is appropriate in such
circumstances, the Guidelines state that a court may consider
prior sentences not used in the criminal history calculation or
prior conduct not resulting in a conviction. USSG
§ 4A1.3(a)(2), p.s.
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Canady contends that the court imposed an upward
departure sentence that was too severe, arguing that his
criminal history is not especially violent or egregious to
warrant a sentence more than double the highest-end of the
suggested Guidelines range. However, the district court was
well within its discretion to consider Canady’s numerous prior
convictions that did not result in any criminal history points.
Moreover, the court did not rely exclusively on these unscored
convictions to support the upward departure. It also considered
that Canady posed a danger to the community and had not been
deterred by his previous sentences and contact with the criminal
justice system. Finally, Canady was already in criminal history
category VI, and the court carefully considered the intervening
offense levels and explicitly concluded that they were
insufficient to meet the goals of sentencing. We conclude that
the extent of the district court’s departure from the Guidelines
was permissible and that its justifications were sufficiently
compelling. See United States v. McNeill, 598 F.3d 161, 166-67
(4th Cir. 2010) (affirming upward departure under § 4A1.3).
For these reasons, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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