UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4419
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER HAROLD GOINS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (7:10-cr-00107-FL-1)
Submitted: April 18, 2012 Decided: May 8, 2012
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, 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Unpublished opinions are not binding precedent in this circuit.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:
Christopher Harold Goins, Jr., appeals the 240-month
sentence imposed following his conviction of one count of being
a convicted felon in possession of a firearm, in violation of 18
U.S.C. § 922(g) (2006), and one count of possession of a stolen
firearm, in violation of 18 U.S.C. § 922(j) (2006). On appeal,
Goins argues that the district court’s upward departure resulted
in a substantively unreasonable sentence. He also seeks a
remand for correction of the written judgment to reflect the
district court’s oral pronouncement of his sentence. Although
we affirm Goins’s sentence, we remand for the district court to
correct the written judgment.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010) (abuse of discretion standard of
review applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
§ 3553 for a sentence different than the one ultimately
imposed”). A sentence is reviewed for procedural and
substantive reasonableness. Gall, 552 U.S. at 51. In reviewing
a variance sentence for substantive reasonableness, we assess
“whether the District Judge abused his discretion in determining
that the § 3553(a) factors supported [the sentence] and
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justified a substantial deviation from the Guidelines range.”
Id. at 56. In doing so, we must “take into account the totality
of the circumstances, including [the] extent of any variance
from the Guideline range.” Id. at 51.
Goins argues that the district court abused its
discretion in granting the Government’s motion for an upward
departure based on the Guidelines’ underrepresentation of his
criminal history where his sentence was already enhanced based
on the application of the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e) (2006). We disagree. The district court’s
decision to depart upward “reflects a thorough individualized
assessment of [Appellant’s] situation, in light of the § 3553(a)
factors.” United States v. Rivera-Santana, 668 F.3d 95, 106
(4th Cir. 2012). The court thoroughly explained that Goins’s
history of violent behavior and recidivism and the need to
protect the public and promote respect for the law warranted a
240-month sentence. Accordingly, we conclude that the court did
not abuse its discretion by departing upward to a 240-month
sentence.
Although we affirm Goins’s sentence, we remand for
correction of the written judgment. At sentencing, the district
court ordered that Goins’s federal sentence be served
concurrently with any not-yet-imposed state sentence involving
the same firearm. See Setser v. United States, No. 10-7387,
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2012 WL 1019970, at *3 (U.S. Mar. 28, 2012) (permitting a
district court to order that the federal sentence run
consecutively or concurrently with a future state sentence).
The amended written judgment, however, orders that the sentence
run concurrently with “any state sentencing the defendant is now
serving.” Where there is a conflict between a district court’s
written judgment and its oral pronouncement of the sentence, the
oral sentence controls. United States v. Osborne, 345 F.3d 281,
283 n.1 (4th Cir. 2003) (citing United States v. Morse, 344 F.2d
27, 30 n.1 (4th Cir. 1965)). The remedy for such a conflict is
to remand to the district court with instructions to correct the
written judgment to conform to the oral sentence. Morse, 344
F.2d at 30-31 & n.1. We reject the Government’s suggestion that
the discrepancy between the oral prouncement of sentence and the
written judgment is harmless.
For the foregoing reasons, we affirm Goins’s sentence
but remand with instructions to correct the written judgment to
reflect the district court’s oral pronouncement of Goins’s
sentence. 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 AND REMANDED
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