UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4814
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEROY THAMES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cr-00015-BO-1)
Submitted: February 29, 2012 Decided: March 30, 2012
Before DAVIS, KEENAN, and FLOYD, 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Affirmed by unpublished per curiam opinion.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. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Leroy Thames pled guilty to two counts of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The statutory maximum sentence for each
count was ten years. The district court varied above the
Guidelines range and imposed a sentence of 240 months. Thames
contends on appeal that the district court committed procedural
error by misapplying U.S. Sentencing Guidelines Manual
§ 5G1.2(d) (2010). We affirm.
Thames’ conviction resulted from his attempt to rob a
woman of her purse in a well-frequented area of downtown
Wilmington, North Carolina. As the victim and her companions
attempted to subdue him, Thames pulled out a revolver and tried
to shoot three times. At Thames’ sentencing hearing, a
Wilmington detective informed the court that marks on the
bullets in Thames’ gun indicated that the trigger had been
pulled, and that the gun fired normally after he cleaned it.
The district court determined that Thames’ advisory
Guidelines range was 110-137 months, capped at 120 months by the
ten-year statutory maximum sentence on each count. The court
decided that a sentence within the range was insufficient to
meet the sentencing goals of 18 U.S.C. § 3553(a) (2006), given
the seriousness of the offense, the fact that one or more people
might have been killed if the handgun had fired, and Thames’
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prior convictions for robbery and attempted kidnapping. The
court ascertained that, under § 5G1.2(d), it could impose a
partially consecutive sentence on one count, but only to the
extent necessary to produce a combined sentence of 137 months.
The court instead decided to vary above the Guidelines range by
imposing fully consecutive sentences to produce a total sentence
of 240 months.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
In determining the procedural reasonableness of a sentence, this
court considers whether the district court properly calculated
the defendant’s Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) factors, analyzed
any arguments presented by the parties, and sufficiently
explained the selected sentence. Gall, 552 U.S. at 51. No
presumption of unreasonableness attaches to a sentence outside
of the Guidelines range. Id. Thames argues on appeal that the
district court procedurally erred by incorrectly applying
§ 5G1.2(d) and imposing a sentence in excess of 137 months. In
his view, the court thereby effectively increased his statutory
maximum to 240 months.
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Thames is correct that his total Guidelines sentence
was 137 months and that the district court could not, under
§ 5G1.3(d), combine his statutory maximum sentences to achieve a
sentence in excess of 137 months. However, the court chose not
to impose a sentence within the Guidelines range and instead
varied above the range pursuant to 18 U.S.C. § 3553(a). The
court was not prevented from varying upward by the operation of
§ 5G1.2(d). No procedural error occurred.
Thames does not challenge the substantive
reasonableness of his sentence. To the extent that the issue is
implicitly raised, we conclude that the sentence is
substantively reasonable when viewed in light of Thames’ past
convictions for robbery and attempted kidnapping, and his
attempt to shoot one or more people at close range during the
instant offense. Even if we might weigh the § 3553(a) factors
differently and select a lesser sentence, the district court’s
sentence deserves deference. See United States v. Jeffery, 631
F.3d 669, 679-80 (4th Cir.), cert. denied, 132 S. Ct. 187
(2011).
We therefore 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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