UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM NEIL THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:13-cr-00009-RLV-DCK-1)
Submitted: April 24, 2018 Decided: May 16, 2018
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B.
Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Neil Thompson pled guilty in 2013 to possessing a firearm as a convicted
felon, 18 U.S.C. § 922(g) (2012), and was originally sentenced to 15 years’
imprisonment. On remand from this court, Thompson received a 110-month sentence
resulting from a two-level upward departure in his total offense level. Thompson
appeals.
Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for appeal but questioning whether
Thompson’s prior North Carolina conviction for common law robbery was properly
counted as a crime of violence under U.S. Sentencing Guidelines Manual (USSG)
§ 4B1.2 (2016), and whether his sentence is procedurally and substantively reasonable.
Thompson has filed a pro se supplemental brief also claiming that his robbery conviction
was improperly counted as a crime of violence because the district court looked to his
underlying conduct, in violation of Shepard v. United States, 544 U.S. 13 (2005) (limiting
sentencing court’s inquiry into prior convictions based on guilty pleas).
We review a sentence, “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). This review requires consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. In determining procedural
reasonableness, this court considers whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012) sentencing factors,
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selected a sentence based on clearly erroneous facts, or failed to explain sufficiently the
selected sentence. Id. at 49-51. Only after determining that the sentence is procedurally
reasonable does this court consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.” Id. at 51.
In reviewing a sentence outside the Guidelines range, this court must “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. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal
quotation marks omitted). If a court’s deviation from the Guidelines range “is a
substantial one, . . . [this court] must more carefully scrutinize the reasoning offered by
the district court in support of the sentence. The farther the court diverges from the
advisory guideline range, the more compelling the reasons for the divergence must be.”
United States v. Hampton, 441 F.3d 284, 288 (4th Cir. 2006) (internal quotation marks
omitted). Although an above-Guidelines-range sentence carries no presumption of
reasonableness on appeal, “a sentence outside the Guidelines carries no presumption of
unreasonableness.” Irizarry v. United States, 553 U.S. 708, 714 (2008). A district court
is permitted to depart upwardly from the Guidelines range based on the inadequacy of a
defendant’s criminal history category when “reliable information indicates that the
defendant’s criminal history category substantially underrepresents 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.
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With these standards in mind, we find that Thompson’s sentence is procedurally
and substantively reasonable. First, the district court properly counted Thompson’s prior
common law robbery conviction as a predicate offense for sentencing enhancement
purposes. See United States v. Gattis, 877 F.3d 150, 154-60 (4th Cir. 2017), cert. denied,
2018 WL 1278447 (Apr. 16, 2018) (No. 17-8044) (holding that North Carolina common
law robbery constitutes “robbery” as enumerated in the amended version of USSG
§ 4B1.2(a)(2)). Second, we find that the district court’s decision to increase Thompson’s
total offense level by two levels was supported by the record. In accordance with Anders,
we have reviewed the record in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court requires that counsel inform
Thompson, in writing, of his right to petition the Supreme Court of the United States for
further review. If Thompson 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 Thompson. 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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