UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00185-D-1)
Submitted: December 20, 2012 Decided: January 7, 2013
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert H. Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES, ATTORNEYS AT
LAW, PC, 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Unpublished opinions are not binding precedent in this circuit.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:
James Miller pled guilty to possession of contraband
by an inmate, 18 U.S.C. § 1791(a)(2), (b)(3) (2006), and was
sentenced to a term of fifty-eight months’ imprisonment, an
upward variance of twelve months from the top of the career
offender Guidelines range the district court found
applicable. U.S. Sentencing Guidelines Manual § 4B1.1 (2011).
Miller appeals his sentence, contending that the district court
procedurally erred by finding that he was a career offender and
substantively erred by varying upward. We affirm.
Miller possessed two homemade knives, or shanks, which
were both concealed in his clothing when they were discovered.
At his sentencing hearing, Miller unsuccessfully challenged his
designation as a career offender on the ground that his instant
offense was not a crime of violence. The court varied upward
from the Guidelines range of 37-46 months in light of the
seriousness of Miller’s offense, his history of drug and
firearms offenses beginning at an early age, his repeated
failure to comply with conditions of supervised release, and the
disciplinary infractions he incurred while he was incarcerated.
The court explained that the variance was necessary “to punish
and to deter [Miller] for the serious offense. . . . to deter
others . . . [and] to incapacitate [Miller].”
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We review a sentence for reasonableness under an abuse
of discretion standard, Gall v. United States, 552 U.S. 38, 51
(2007), which 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).
Miscalculation of the Guidelines range is a significant
procedural error. Gall, 552 U.S. at 51. The substantive
reasonableness of a sentence is reviewed for abuse of
discretion, “tak[ing] into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. In reviewing a
variance, the appellate court must give due deference to the
sentencing court’s decision. United States v. Diosdado-Star,
630 F.3d 359, 366 (4th Cir.) (citing Gall, 552 U.S. at
51), cert. denied, 131 S. Ct. 2946 (2011).
We conclude that the district court did not err
procedurally in finding that Miller’s possession of shanks was a
crime of violence. See United States v. Mobley, 687 F.3d 625
(4th Cir. 2012), petition for cert. filed, Nov. 8, 2012.
With respect to the variance, Miller claims first that
it was based on a consideration of improper factors,
specifically, his apparent failure to accept the teachings of
the Jehovah’s Witnesses, as his parents did, and that the court
“relied too heavily on its own subjective belief in the
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seriousness of the offense[.]” However, the record shows that
the district court did not rely on Miller’s religious beliefs or
lack of beliefs in determining the sentence. The court’s
comments were not focused on Miller’s beliefs, but on his early
inclination to crime. Moreover, in light of Mobley, the court
properly assessed the seriousness of the crime.
Miller also argues that the extent of the court’s
variance was unreasonable because it was almost twice as much as
the top of the 24-to-30-month Guidelines range that that would
have applied had the court decided that he was not a career
offender. This claim is meritless because the court correctly
determined that Miller was a career offender.
Last, Miller contends that, even if the district court
correctly determined that he was a career offender, the upward
variance was unreasonable. The district court’s justification
for a variance must support the degree of the variance, but the
court need not identify “extraordinary circumstances,” even for
a major deviation from the Guidelines range. Diosdado-Star, 630
F.3d at 366 (internal quotation and citation omitted). Here, we
conclude that the district court adequately explained its
decision to vary and did not abuse its discretion in varying
upward by twelve months.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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