UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4498
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAYSON COLLINS PHILPOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
District Judge. (5:09-cr-00038-D-1)
Submitted: October 19, 2011 Decided: November 14, 2011
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jayson Collins Philpott pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006). Philpott received an above-Guidelines
ninety-month sentence. On appeal, Philpott argues that his
sentence is procedurally and substantively unreasonable.
Specifically, he claims that the district court provided an
inadequate explanation for its upward variance from the advisory
Guidelines range and that the court’s reasoning was insufficient
to justify the extent of the upward variance. We affirm.
This court reviews a sentence imposed by a district
court for reasonableness, applying a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 46, 51 (2007). This court first examines the sentence for
“significant procedural error,” including improper calculation
of the Guidelines range, insufficient consideration of the 18
U.S.C. § 3553(a) (2006) factors, and inadequate explanation of
the sentence imposed. Gall, 552 U.S. at 51; see United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). This court
also must ensure that the district court analyzed any
nonfrivolous arguments presented by the parties, sufficiently
explained its reasons for rejecting those arguments, and made
“an individualized assessment based on the facts presented.”
Gall, 552 U.S. at 49-50; Carter, 564 F.3d at 328. Because
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Philpott argued for a sentence different from the one imposed,
he properly preserved his claim of procedural sentencing error,
and we will reverse an abuse of discretion unless we conclude
the error was harmless. See United States v. Lynn, 592 F.3d
572, 576, 578 (4th Cir. 2010).
If this court finds a sentence procedurally
reasonable, it then examines the substantive reasonableness of
the sentence under the totality of the circumstances. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Where the
sentencing court imposes a sentence outside the Guidelines
range, it “‘must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the
degree of the variance.’” Id. (quoting Gall, 552 U.S. at 50).
This court “may consider the extent of the deviation [from the
recommended Guidelines range], but must give due deference to
the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 552 U.S. at
51.
It is apparent from the record that the district court
considered both parties’ arguments and had a reasoned basis for
its variance from the Guidelines range. The district court
properly considered the § 3553(a) factors and explained that it
was varying from the Guidelines range because a
within-Guidelines sentence would not account adequately for the
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seriousness of Philpott’s offense and criminal history, nor
provide sufficient deterrence or just punishment for his crime.
The court also specifically addressed defense counsel’s argument
for a within-Guidelines sentence and explained why it was not
adopting counsel’s request. Under the circumstances, we are
satisfied that the district court rendered an individualized
assessment in this case and adequately explained the upward
variance and that the sentence is procedurally sound. Finally,
we cannot conclude that the district court abused its discretion
in imposing a nineteen-month upward variance, and we hold that
the sentence is substantively reasonable in light of the
seriousness of Philpott’s criminal history, his extensive
involvement with firearms, and the district court’s reasoned
analysis of the relevant § 3553(a) factors.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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