UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4794
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEDRIC DEWAYNE CAPERS,
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. (5:15-cr-00096-D-1)
Submitted: July 29, 2016 Decided: August 3, 2016
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD, ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. John Stuart Bruce, Acting United
States Attorney, Jennifer P. May-Parker, Barbara D. Kocher,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cedric Dewayne Capers pled guilty to one count of being a
felon in possession of a firearm and ammunition, in violation of
18 U.S.C. §§ 922(g)(1), 924 (2012). At sentencing, the district
court adopted Capers’ presentence report without objection and
established a Sentencing Guidelines range of 63 to 78 months.
Based on Capers’ attempt to rob an individual in relation to his
offense of conviction and on his prior robbery conviction, the
district court imposed an upward variant sentence of 108 months.
On appeal, Capers challenges the substantive reasonableness of his
sentence. We affirm.
We review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). When reviewing the substantive reasonableness of a
sentence, “we examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Gomez-Jimenez, 750 F.3d 370, 383
(4th Cir. 2014) (internal quotation marks and brackets omitted).
Where the sentencing court imposed a variant sentence, we determine
“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
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States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal
quotation marks omitted).
First, Capers contends that the district court’s decision to
impose an upward variant sentence was substantively unreasonable
because the enhancements to his base offense level sufficiently
accounted for the seriousness of his offense compared to the
average 18 U.S.C. § 922(g)(1) offense. We disagree. Not only did
Capers agree to trade firearms with a known drug dealer, but he
also attempted to rob the drug dealer, and the “armed muscle” he
brought to the transaction discharged a firearm at the drug dealer,
striking him twice. Accordingly, the district court did not abuse
its discretion when it concluded that Capers’ Guidelines range,
even with the sentencing enhancements Capers received, did not
adequately reflect the seriousness of the conduct underlying
Capers’ offense.
Second, Capers argues that the district court abused its
discretion by relying on his prior robbery conviction when imposing
the variant sentence. In support of this argument, Capers cites
United States v. Howard, 773 F.3d 519 (4th Cir. 2015). We conclude
that Capers’ upward variant sentence is not analogous to the upward
departure sentence at issue in Howard. First, whereas Capers
sustained his robbery conviction just over four years prior to his
offense of conviction and after reaching the age of majority,
Howard’s convictions significantly predated his offense of
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conviction and the majority of Howard’s convictions were sustained
while he was a juvenile. Second, Capers’ prior robbery conviction
was one of several factors that the district court relied upon
when imposing the variant sentence. Third, and most importantly,
the extent of the variance in Capers’ case, an increase of 30
months from 78 months to 108 months, pales in comparison to the
extent of the departure and the permanence of the life sentence at
issue in Howard.
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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