UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEXANDER ROBBINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:14-cr-00025-FL-1)
Submitted: June 29, 2015 Decided: August 5, 2015
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander Robbins challenges the substantive reasonableness
of the 71-month sentence imposed by the district court following
his conviction, pursuant to a guilty plea, for knowingly
possessing a firearm and ammunition as a felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). In imposing the
sentence, the district court departed upward from the Sentencing
Guidelines range, concluding that Robbins’ criminal history
category “substantially underrepresent[ed] the seriousness of
[his] criminal history or the likelihood that [he] will commit
other crimes.” U.S. Sentencing Guidelines Manual § 4A1.3, p.s.
(2013). We affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). Where, as here, the defendant
does not assert procedural sentencing error, we turn our
attention to the substantive reasonableness of the sentence,
“take[] into account the totality of the circumstances,” id.,
at 51, and consider “whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in [18 U.S.C.] § 3553(a) [(2012)],”
United States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir.)
(internal quotation marks omitted), cert. denied, 135 S. Ct. 305
(2014), and cert. denied, 135 S. Ct. 384 (2014). “An appellate
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court owes ‘due deference’ to a district court’s assessment of
the § 3553(a) factors, and mere disagreement with the sentence
below is ‘insufficient to justify reversal of the district
court.’” United States v. Howard, 773 F.3d 519, 531 (4th Cir.
2014) (quoting Gall, 552 U.S. at 51); see id. at 529 n.8; see
also Gall, 552 U.S. at 51-52.
Robbins first contends that the district court abused its
discretion by upwardly departing under § 4A1.3, p.s., because
his criminal history, though lengthy, primarily included
misdemeanor convictions, not violent felonies or firearm
offenses. We note, however, that Robbins’ criminal history
included numerous misdemeanor convictions for assaultive
behavior and for crimes against property and a felony conviction
for possession of a firearm as a felon — all of which received
no criminal history points. Nothing in the language of § 4A1.3,
p.s., prevented the district court from relying on these
unscored convictions, and we conclude that it did not abuse its
discretion by doing so.
Second, Robbins argues that his departure sentence creates
unwarranted sentencing disparities between him and those who
have been convicted under § 922(g)(1) and have received within-
Guidelines sentences after being accorded the same total offense
level and criminal history category as Robbins. On the
contrary, we conclude that the Sentencing Commission’s adoption
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of the § 4A1.3, p.s., departure renders the resulting sentencing
disparity between Robbins and his putative comparators
warranted. See 18 U.S.C. § 3553(a)(6); cf. Gall, 552 U.S. at
54. Although a sentencing disparity based on a § 4A1.3, p.s.,
departure might be unwarranted if the departure is
inappropriately applied, the imposition of the departure, by
itself, cannot be grounds for concluding that the resulting
disparity is unwarranted.
Next, Robbins contends that the district court’s rationale
for imposing its sentence was unreasonable because his criminal
history shows he was predominantly a drug user and not in the
habit of using firearms as part of his criminal conduct and
that, therefore, he presented a danger to himself more than to
the public. See 18 U.S.C. § 3553(a)(2)(C). Robbins’
characterization of his criminal history is deeply flawed. As
the district court noted, his convictions exhibit a pattern of
assaulting others, injuring their property, and placing their
safety at risk by his criminal disregard for motor vehicle
regulations. His claim that he has generally, but not always,
refrained from using a firearm while engaging in conduct that
harms or endangers the public is largely irrelevant. In any
event, the language of § 3553(a)(2)(C) does not limit the
sentencing court’s consideration to criminal conduct that
violently harms the public, and the possession and use of
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illicit drugs are by no means harmless to society. See
Harmelin v. Michigan, 501 U.S. 957, 1002-03 (1991) (Kennedy, J.,
concurring).
Finally, Robbins contends that the district court’s
sentence was unreasonable because it relied on the need for
deterrence when he, as a drug addict compelled to act
irrationally, is not amenable to the deterrent effect of
punishment. See 18 U.S.C. § 3553(a)(2)(B). We have found no
case in which a court of appeals has concluded that deterrence
is an inappropriate sentencing factor on the ground that the
defendant is a drug addict, and Robbins points to none.
Moreover, we note that Robbins’ reasoning appears to be at odds
with the conclusions reached by the Supreme Court in Powell v.
Texas, 392 U.S. 514 (1968).
Because Robbins has offered no meritorious reason why we
should not defer to the district court’s judgment, we conclude
that the sentence imposed on Robbins is substantively
reasonable. Accordingly, we affirm the district court’s
judgment. 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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