UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4752
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES FULTON MCKOY,
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. (7:15-cr-00015-D-1)
Submitted: October 18, 2016 Decided: November 9, 2016
Before KING, KEENAN, 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Affirmed by unpublished per curiam opinion.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. 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Unpublished opinions are not binding precedent in this circuit.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:
James Fulton McKoy appeals the 120-month sentence imposed
following his guilty plea to mailing bomb threats, in violation
of 18 U.S.C. § 844(e) (2012). On appeal, McKoy challenges the
substantive reasonableness of the upward departure sentence
imposed by the district court pursuant to U.S. Sentencing
Guidelines Manual § 4A1.3, p.s. (2015). We affirm.
We “review all sentences — whether inside, just outside, or
significantly outside the Guidelines range — under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). Under this standard, a sentence is reviewed for
both procedural and substantive reasonableness. Id. at 51. In
the present case, McKoy does not assert that the district court
committed procedural error. We therefore review the court’s
decision only for substantive reasonableness under the totality
of the circumstances. United States v. Howard, 773 F.3d 519,
528 (4th Cir. 2015) (internal quotation marks omitted). “When
reviewing a departure, 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.” Id. at 529 (internal quotation
marks omitted). “[W]e must defer to the trial court and can
reverse a sentence only if it is unreasonable, even if the
sentence would not have been the choice of the appellate court.”
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United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013)
(internal quotation marks omitted); see Howard, 773 F.3d at 531
(same).
We conclude that the district court did not abuse its
discretion in departing from McKoy’s advisory Sentencing
Guidelines range and imposing a term of 120 months’
imprisonment. “A court may base a Guidelines § 4A1.3 upward
departure on a defendant’s prior convictions, even if those
convictions are too old to be counted in the calculation of the
Guidelines range under Guidelines § 4A1.2(e).” United States v.
McCoy, 804 F.3d 349, 352 (4th Cir. 2015). Here, the district
court concluded that considering those convictions, McKoy’s
lengthy criminal history, the lenient sentences he received, his
failure to modify his behavior, and the conduct underlying the
instant offense was necessary to better reflect McKoy’s criminal
history. See id.
The district court also reasonably applied the relevant 18
U.S.C. § 3553(a) (2012) factors. The district court considered
McKoy’s criminal history in concluding that an above-Guidelines
sentence was necessary to promote respect for the law and
protect the public. See 18 U.S.C. § 3553(a)(2)(A), (C).
Furthermore, the district court reasonably concluded that
McKoy’s extensive criminal history did not adequately deter him
from committing the instant offense and, thus, that a lengthier
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sentence was necessary to afford adequate deterrence. See id.
§ 3553(a)(2)(B); see also United States v. Montes-Pineda, 445
F.3d 375, 381 (4th Cir. 2006) (“[A] shorter prison term was
inappropriate for a defendant who had repeatedly committed a
serious offense and who had already proven immune to other means
of deterrence.”). We therefore hold that the 120-month sentence
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 before this court and
argument would not aid the decisional process.
AFFIRMED
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