PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4690
GARY D. FINLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(4:07-cr-00011-JBF)
Argued: March 18, 2008
Decided: June 30, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and
Irene M. KEELEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Shedd and Judge Keeley joined.
COUNSEL
ARGUED: Larry Mark Dash, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Dee Mullarkey Ster-
ling, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal
Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosen-
berg, United States Attorney, Alexandria, Virginia, for Appellee.
2 UNITED STATES v. FINLEY
OPINION
NIEMEYER, Circuit Judge:
In the early afternoon of January 30, 2007, U.S. Army civilian
police officers arrested Gary Finley on the grounds of the Fort Mon-
roe Army Post in Hampton, Virginia, for driving under the influence
of alcohol. Finley thereafter pleaded guilty to "knowingly driving or
operating a motor vehicle while under the influence of alcohol, third
offense within ten years," in violation of Virginia Code Ann. §§ 18.2-
266 and 18.2-270(C)(1), and to "driving a motor vehicle on a highway
while [his] operator’s license was suspended and/or revoked," in vio-
lation of Virginia Code Ann. § 46.2-301, both as assimilated into fed-
eral law by the Assimilative Crimes Act, 18 U.S.C. § 13. Because of
the circumstances of the crime and Finley’s extensive history of alco-
hol abuse, the district court sentenced him to 27 months’ imprison-
ment.
Finley now appeals his sentence, contending that it is unreasonable
because (1) the district court refused to consider adequately the sen-
tence recommended by Virginia’s sentencing guidelines and (2) the
sentence was, in any event, "far too long."
For the reasons that follow, we affirm.
I
At approximately 12:45 p.m. on January 30, 2007, Gary Finley,
working as a food delivery driver, drove a Toyota pickup truck onto
the Fort Monroe Army Post in Hampton, Virginia. While checking
Finley’s identification at the security gate, the gate officer noticed a
strong smell of alcohol emanating from Finley and called his supervi-
sor for assistance. The supervisor too detected the odor of alcohol and
called the Fort Monroe Military Police desk for assistance.
Two U.S. Army civilian police officers responded, and Officer
David Head asked Finley for his driver’s license. Finley replied that
it had been suspended for failure to pay fines. As Officer Head also
noted that Finley smelled strongly of alcohol, he asked Finley to exit
UNITED STATES v. FINLEY 3
the truck, and Finley did so, using the truck’s door for support. Offi-
cer Head also noticed that Finley’s face was flushed. Finley agreed
to perform some field sobriety tests and failed every one. He then
consented to a preliminary breath test which indicated a blood alcohol
concentration of .32, four times Virginia’s legal limit of .08. See Va.
Code Ann. § 18.2-266. Officer Head administered the test again to
assure the accuracy of the result, and the second test indicated a blood
alcohol concentration of .31. The officers escorted Finley to the police
station, where Finley consented to provide a breath sample for testing
on an Intoxilyzer machine. After thirty minutes of observation, Finley
provided the breath sample, which registered an alcohol content of .25
grams per 210 liters of breath, still more than three times Virginia’s
legal limit. A review of Finley’s driving record revealed that he had
twice previously been convicted of driving under the influence of
alcohol ("DUI"), once in July 1997 (for an offense committed in May
of that year) and once in March 2003 (for an offense committed in
November 2002).
Finley pleaded guilty without the benefit of a plea agreement to the
charges of driving under the influence of alcohol for the third time in
ten years and of driving on a suspended license. His presentence
report stated that "[t]his [was] a non-guidelines case" under federal
law because the offenses of conviction were assimilated from state
law and there were no analogous federal sentencing guidelines. It also
indicated that the minimum and maximum sentences under Virginia
law for the offenses were 90 days to five years’ imprisonment for the
third DUI offense within ten years and up to one year’s imprisonment
for driving with a suspended license.
At sentencing, Finley argued that because the Assimilative Crimes
Act requires that a defendant be "subject to a like punishment," refer-
ring to what he would have faced in state court for the same conduct,
it was "appropriate" for the district court to know and consider what
Virginia’s sentencing guidelines would be for his offenses. Finley’s
counsel represented that Virginia‘s sentencing guidelines range
"would have been between one day and six months with a mandatory
minimum of 90 days." The district court responded that it "could care
less what the guidelines [were] in the state system," but noted that for
each of Finley’s DUI convictions he was sentenced under state law
to six months in jail, suspended. The court also noted that in 2004,
4 UNITED STATES v. FINLEY
Finley’s second six-month sentence was reinstated because Finley
failed to comply with the alcohol treatment program mandated as a
condition of the suspended sentence, and, notwithstanding that he
fully served that prison term, he continued to display a disregard for
the law and an inability to refrain from driving under the influence.
The district court rejected Finley’s argument that the state guidelines
should carry significant weight and sentenced Finley to 27 months’
imprisonment.
Finley now appeals his sentence, contending that it was unreason-
able.
II
Finley advances a two-pronged attack on the reasonableness of his
sentence: one based on procedural error that "the district court did not
adequately consider the disparity between the sentence it imposed . . .
and the sentence recommended under [Virginia’s] guidelines" and the
other based on substantive unreasonableness that the sentence is "far
too long." See Gall v. United States, 128 S. Ct. 586, 597 (2007).
As an overarching preliminary issue, however, the government
asserts that while our review of a sentence for which the Sentencing
Guidelines provide a recommended sentence is for "reasonableness,"
see Gall, 128 S. Ct. at 594, our review of a sentence for which there
is no recommended sentencing guideline is for whether the sentence
was "plainly unreasonable," as stated in 18 U.S.C. § 3742(a)(4) and
applied in United States v. Crudup, 461 F.3d 433 (4th Cir. 2006). We
address this issue first.
In Crudup, we held that the Sentencing Commission issued no sen-
tencing guideline for a sentence imposed on revocation of supervised
release, even though the Commission did issue policy statements
relating to such sentencing, and therefore that 18 U.S.C. § 3742(a)(4)
applied to limit the defendant’s appeal of such a sentence to a claim
that the sentence was "plainly unreasonable." 461 F.3d at 435-36. We
also held that if the defendant’s appeal of a sentence for which there
was no sentencing guideline is limited to sentences that are "plainly
unreasonable," our review of the sentence, likewise, is for whether the
sentence was "plainly unreasonable." Id. at 436-37.
UNITED STATES v. FINLEY 5
Thus, the government argues in this case that just as Crudup
applied the "plainly unreasonable" review standard for sentences on
revocation of supervised release for which there was no sentencing
guideline, we should apply the "plainly unreasonable" standard for
review of assimilated crimes for which there is no sentencing guide-
line. We agree.
We begin with some background. Even though assimilated crimes
are derived from state law, they become federal law under 18 U.S.C.
§ 13. Likewise, even though the range of sentence for an assimilated
crime is derived from state law, sentencing itself is conducted under
federal law. As 18 U.S.C. § 3551 provides, "a defendant who has
been found guilty of an offense described in any Federal statute,
including section[ ] 13 [the Assimilative Crimes Act] . . . , shall be
sentenced in accordance with the provisions of this chapter so as to
achieve the purposes set forth in subparagraphs (A) through (D) of
section 3553(a)(2) to the extent that they are applicable in light of all
the circumstances of the case." Therefore, as a general proposition,
"[t]he sentencing guidelines apply to convictions under 18 U.S.C.
§ 13 (Assimilative Crimes Act)." U.S.S.G. § 2X5.1 cmt. bkgrd.
When an assimilated state offense resembles conduct for which a
sentencing guideline for a federal offense has been promulgated, the
Sentencing Guidelines provide that "the most analogous offense
guideline" should be applied. U.S.S.G. § 2X5.1; see, e.g., United
States v. Calbat, 266 F.3d 358, 362-63 (5th Cir. 2001) (applying "ag-
gravated assault" guideline to an Assimilative Crimes Act conviction
for "intoxication assault"); United States v. Queensborough, 227 F.3d
149, 152 n.2 (3d Cir. 2000) (applying "criminal sexual abuse" guide-
line to an Assimilative Crimes Act conviction for "aggravated rape");
United States v. Terry, 86 F.3d 353, 357-58 (4th Cir. 1996) (applying
"aggravated assault" guideline to an Assimilative Crimes Act convic-
tion for "shooting at an occupied vehicle"). But when "there is not a
sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553
shall control." U.S.S.G. § 2X5.1; see, e.g., United States v. Reyes, 48
F.3d 435, 438 (9th Cir. 1995) (finding no analogous federal guideline
for the state offense of driving without a license).
In this case, both Finley and the government agree that U.S.S.G.
§ 2X5.1 applies and that "there is not a sufficiently analogous guide-
6 UNITED STATES v. FINLEY
line" from which to derive a recommended federal offense guideline.
Thus, the parties agree that the provisions of 18 U.S.C. § 3553 control
directly, without any need to consider a sentence recommended by the
Sentencing Guidelines. The government thus reasons that because
there is no sufficiently analogous guideline, the provisions of 18
U.S.C. § 3742(a)(4), as construed by Crudup, apply to impose a
"plainly unreasonable" standard of review for the sentence. Finley
contends to the contrary — that § 3472(a)(4) does not apply because
U.S.S.G. § 2X5.1 itself is an applicable sentencing guideline.
Our agreement with the government’s position is based on two rea-
sons. First, the text of U.S.S.G. § 2X5.1 compels the conclusion that
§ 2X5.1 is not itself a "sentencing guideline" for purposes of 18
U.S.C. § 3742. Section 2X5.1 instructs a sentencing court to "apply
the most analogous offense guideline" to the offense of conviction,
and "[i]f there is not a sufficiently analogous guideline" (emphasis
added), it provides that the statutory provisions of 18 U.S.C. § 3553
"control." In other words, § 2X5.1 is not itself an "offense guideline"
because it does not describe any particular offense nor yield any par-
ticular guideline range. Instead, it directs a court either to use an anal-
ogous offense guideline if one exists, or to rely on statutory
provisions of § 3553 in the absence of an appropriate offense guide-
line. Simply, therefore, if "there is not a sufficiently analogous guide-
line," U.S.S.G. § 2X5.1, "there is no sentencing guideline," 18 U.S.C.
§ 3742(a)(4).
Second, in Crudup we construed § 3742(a)(4) to be applicable to
sentences imposed on revocation of supervised release, as no sentenc-
ing guideline was provided, even though the Sentencing Guidelines
did deal with violations of supervised release and contained policy
statements for imposing sentences on revocation of supervised
release. See Crudup, 461 F.3d at 435-36. We conclude that U.S.S.G.
§ 2X5.1, directing the court on which law to apply for assimilated
crimes, is substantially analogous in function to policy statements and
directions for sentencing defendants on revocation of their supervised
release. Thus, just as we held in Crudup that no "sentencing guide-
line" was provided for sentences imposed upon revocation of super-
vised release, so too do we hold here that no sentencing guideline is
provided for the assimilated crimes in this case.
UNITED STATES v. FINLEY 7
In sum, when there is not a sufficiently analogous guideline for the
assimilated offense of conviction, § 3742(a)(4) applies to limit the
defendant’s appeal to sentences that are "plainly unreasonable," and
Crudup similarly narrows our review of those appeals. The "plainly
unreasonable" standard that we apply in this case is but one form of
the broader class of reasonableness standards recognized for review
of sentences by the Supreme Court in United States v. Booker, 543
U.S. 220 (2005). As the Court there stated, "‘Reasonableness’ stan-
dards are not foreign to sentencing law. The [Sentencing] Act has
long required their use in important sentencing circumstances — both
on review of departures, see 18 U.S.C. § 3742(e)(3) (1994 ed.), and
on review of sentences imposed where there was no applicable Guide-
line, see §§ 3742(a)(4), (b)(4), (e)(4)." Booker, 543 U.S. at 262
(emphasis added).
Finley argues that Crudup is distinguishable because it applied the
"plainly unreasonable" standard to a sentence imposed on revocation
of supervised release, rather than to an original sentence imposed for
"actual criminal conduct." See Crudup, 461 F.3d at 437-39. While
Crudup did apply the § 3742(a)(4) standard for review of sentences
imposed on revocation of supervised release, it did not limit its hold-
ing to only such sentences. Nor could it have, for the statutory lan-
guage contains no such limitation. Crudup was simply justifying
application of § 3742(a)(4) to a sentence on revocation, explaining
why it made sense to afford district courts greater discretion in impos-
ing such sentences than in imposing sentences for "actual criminal
conduct." Crudup recognized that review of a revocation sentence
necessarily involves a more "deferential appellate posture" because
the district court has "broad discretion" in imposing the sentence and
because there is no sentencing guideline to serve as the starting point
of the court’s determination of the appropriate sentence. Id. at 439; cf.
Gall, 128 S. Ct. at 596 ("As a matter of administration and to secure
nationwide consistency, the [Sentencing] Guidelines should be the
starting point and the initial benchmark").
Similar reasoning applies to our holding here. As the Supreme
Court made clear, the primary purpose of the Sentencing Guidelines,
even when advisory, is to "avoid excessive sentencing disparities"
because "Congress’ basic goal in passing the Sentencing Act was to
move the sentencing system in the direction of increased uniformity."
8 UNITED STATES v. FINLEY
Booker, 543 U.S. at 264, 253. While Booker rendered the Sentencing
Guidelines advisory, it nonetheless directed that we review guidelines
sentencing for "unreasonableness" measured in part by the goal of
minimizing disparity. Id. at 264-65. The Court thus did not abandon
the Sentencing Guidelines’ effort to "promote uniformity in the sen-
tencing process." Id. at 263.
But when there is no federal guideline against which such unifor-
mity or disparity can be ascertained, it follows that the need for appel-
late review is commensurately reduced. Congress recognized
precisely this logical consequence when it provided a more deferen-
tial standard of review of sentences imposed for offenses "for which
there is no sentencing guideline" than of sentences imposed for
offenses with a particular offense guideline. See 18 U.S.C.
§ 3742(a)(4). When there is no relevant sentencing guideline, it is
impossible for the Sentencing Guidelines to be "the starting point and
the initial benchmark" of the sentencing process for any purpose, let
alone for "administration and to secure nationwide consistency." Gall,
128 S. Ct. at 596. Because the district court in such cases lacks a
"starting point" or "initial benchmark" under the federal system, it
consequently has greater discretion in selecting an appropriate sen-
tence that comports with the requirements of 18 U.S.C. § 3553, and
we therefore will review that sentence more deferentially.
For these reasons, when we review a sentence imposed for an
assimilated offense for which there is no sufficiently analogous
offense guideline, we do so under the "plainly unreasonable" stan-
dard. See Gall, 128 S. Ct. at 597; Crudup, 461 F.3d at 438-39.
III
In applying the "plainly unreasonable" standard, we first determine,
using the instructions given in Gall, whether a sentence is "unreason-
able."
If we determine based on this review that [the district
court’s] sentence is not unreasonable, the sentence should be
affirmed. In such a circumstance, we do not proceed to the
second prong of our review because it necessarily follows
that a sentence that is not unreasonable is also not plainly
UNITED STATES v. FINLEY 9
unreasonable. However, if we determine that the revocation
sentence is procedurally or substantively unreasonable, we
must then decide whether the sentence is plainly unreason-
able, relying on the definition of "plain" that we use in our
"plain" error analysis. Thus, for purposes of determining
whether an unreasonable sentence is plainly unreasonable,
"[p]lain" is synonymous with "clear" or, equivalently, "obvi-
ous."
Crudup, 461 F.3d at 439 (internal quotation marks omitted) (second
alteration in original). In this case, therefore, we begin by determining
whether Finley’s sentence is unreasonable, and only if we conclude
that it is unreasonable do we proceed to consider the question of
whether it is "plainly unreasonable."
For his arguments that his sentence is unreasonable, Finley con-
tends first that the district court committed "procedural error" because
it "did not adequately consider the disparity between the sentence it
imposed" and "the sentence recommended under the [Virginia] state
guidelines." He argues that the district court thus "failed to consider
the requirements of 18 U.S.C. § 3553" insofar as it ignored the com-
mand of § 3553(a)(6) to "avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct."
First, we must point out that the record reveals that Finley over-
states the district court’s lack of consideration, as well as the alleged
unwarranted disparity between a sentence that would be imposed
under the Virginia guidelines and the one imposed by the district
court in this case.
At sentencing, Finley’s attorney represented to the district court
that the applicable Virginia sentencing guideline "would have been
between one day and six months with a mandatory minimum of 90
days."* While his attorney recognized that there is a wide discrepancy
*As it turns out, counsel for Finley erroneously reported the state
guidelines to the district court and conceded on appeal that in fact the
state guidelines called for a sentence of between seven and ten months’
imprisonment.
10 UNITED STATES v. FINLEY
in the sentences that judges in Virginia actually give — as the state
guidelines are entirely discretionary and not subject to appellate
review — the attorney indicated that the state guidelines should at
least be considered, and when considered, the district court should
sentence Finley to "a period of six months’ [incarceration] with six
months of either home detention or community confinement." While
the court responded that it appreciated the argument but "frankly . . .
could care less what the guidelines [were] in the state system," it later
explained how sentencing under the state guidelines provided no
deterrence to Finley. The court also repeated to Finley’s attorney how
it "appreciate[d] knowing what the [Virginia] guidelines [were]."
But that did not end the district court’s consideration of Virginia’s
guidelines. Addressing more broadly the reasons for imposing the 27-
month sentence, the district court noted that the state sentences Finley
had received in the past had been suspended and that Finley had not
served any time until he violated the terms of his probation, where-
upon he served six months. Moreover, the court observed that the six-
month sentence he served also did not deter Finley, because he con-
tinued driving under the influence of alcohol. After reviewing a his-
tory of Finley’s conduct and sentences in state court, the district court
explained its ultimate refusal to apply the state’s discretionary guide-
lines:
I have to consider the kinds of sentences available. We all
know what that is because we look at the state statutes. I
can’t tell you about the need to avoid unwarranted sentenc-
ing disparities among defendants with similar records who
have been found guilty of similar offenses. You have been
kind enough and I appreciate telling me what the state
guidelines are. We don’t have federal guidelines in this par-
ticular case.
At bottom, the court concluded that the previous six-month sentences
Finley received had not been sufficient and that the court needed to
impose a sentence that would change Finley’s behavior and protect
the public.
But we do not reject Finley’s argument solely because the district
court did indeed consider the state guidelines. We also conclude that
UNITED STATES v. FINLEY 11
Finley misreads the command of the Assimilative Crimes Act and its
role in federal sentencing. That Act provides that a person who is
guilty of committing any act punishable under state law while he is
in the state but subject to the "special maritime and territorial jurisdic-
tion" of the United States, "shall be guilty of a like offense and subject
to a like punishment" under federal law. 18 U.S.C. §§ 7, 13(a)
(emphasis added). We have held that "like punishment," as used in the
Assimilative Crimes Act, does not require that the punishment be
identical but only that sentences in federal court for assimilated
crimes "fall within the minimum and maximum terms established by
state law." United States v. Young, 916 F.2d 147, 150 (4th Cir. 1990);
see also United States v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996).
Within that range, federal courts have discretion in imposing sen-
tences as regulated by federal law. Id. Thus when 18 U.S.C. § 13
assimilates state crimes, it not only incorporates the definition of
criminal conduct but also "subjects" the defendant to the sentencing
range imposed by the state for the conduct.
The DUI offense in this case — driving a motor vehicle while
under the influence of alcohol for the third time within ten years, in
violation of Va. Code Ann. §§ 18.2-266 and 18.2-270(C)(1) — pro-
vides for a minimum term of imprisonment of 90 days and a maxi-
mum term of five years’ imprisonment. The district court, exercising
discretion conferred by federal law, sentenced Finley to 27 months’
imprisonment, a sentence falling below the midpoint of the state-
prescribed range. Because it fell within the state-prescribed range, it
was also consonant with the Assimilative Crimes Act’s "like punish-
ment" requirement.
Finally, even if we were to accept Finley’s argument that the dis-
trict court should have applied, or more "adequately consider[ed],"
Virginia’s sentencing guidelines, he would be faced with the fact that
those guidelines are entirely discretionary, and deviations from them
are not reviewable on appeal. See Va. Code Ann. § 19.2-298.01.
In sum, we conclude that the district court did not commit any pro-
cedural error so as to justify a finding of unreasonableness under Gall.
IV
Finley also contends that his 27-month sentence is substantively
unreasonable because it is "far too long" for a third DUI offense
12 UNITED STATES v. FINLEY
within ten years, particularly when compared to his likely sentence in
state court. He notes that the mere happenstance of driving onto fed-
eral property should not warrant such a lengthy sentence and that the
first of his three DUI convictions was "nearly ten years old" such that,
had the instant offense occurred in May 2007 instead of January 2007,
it would have been a misdemeanor subject to a one-year maximum
sentence. In addition, he argues that the district court "provided little
basis for the excessive length" of his sentence, claiming that his sen-
tence was "greater than necessary" to meet the goals of federal sen-
tencing under 18 U.S.C. § 3553(a).
First, to the extent that Finley’s challenge to the substantive reason-
ableness of his sentence is a repackaging of his procedural objection
that the district court failed adequately to consider the state guide-
lines, we have already rejected this argument. Second, the fact that
Finley entered a federal enclave does not by itself render his sentence
unreasonable when the sentence was well within, indeed below the
midpoint of, the range of punishment authorized by state law. Third,
we are not empowered to rewrite Virginia’s statute criminalizing a
third DUI within ten years so that it applies only to defendants with
three DUIs within nine and one-half years. In short, none of these
objections demonstrate that his sentence was unreasonable.
As for Finley’s contention that the district court "provided little
basis" under 18 U.S.C. § 3553(a) for the sentence it selected, the
record indicates the contrary. The transcript of the sentencing pro-
ceeding includes five full pages of reasons why, under § 3553(a), the
district court selected the particular sentence.
The court began with Finley’s criminal history and the leniency
that he had repeatedly received in the past, noting that he received a
suspended six-month sentence for his first DUI; a suspended six-
month sentence for a hit-and-run offense; and a suspended six-month
sentence for his second DUI. Finally, it noted that Finley served six
months in jail for failing to comply with his mandatory alcohol treat-
ment program. Following this recitation, the court observed:
So here we have a person who, in the middle of the day, has
a blood alcohol count of over .20. Admittedly drinks more
UNITED STATES v. FINLEY 13
beers than most people drink in a month probably, unless
they really like to drink beer, in a day. He’s an alcoholic.
While recognizing that alcoholism is a sickness, the court pointed out
that this fact does not diminish the fact that Finley was "a danger to
everyone who drives." Then addressing the need for a sentence to
punish and incapacitate, the court pointed to the failure of prior pun-
ishment and the necessity for greater punishment, especially for the
protection of the public:
Taking his license away doesn’t seem to mean anything
because he’s had a suspended license but he still gets behind
the wheel, and thank goodness he hasn’t, you know, caused
some serious injury or death to someone.
* * *
He’s told not to drive. He still drives. He has a .25 in the
middle of the afternoon. That really is a concern to me. Not
that a .25 wouldn’t concern me at 12 o’clock at night, but
to have it in the middle of the afternoon is very disconcert-
ing to the Court.
The court then summarized its application of 18 U.S.C. § 3553(a):
I have to consider the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law,
which he has none because he continues to drive when his
license has been suspended, and, of course, he continues to
drive while he’s intoxicated; to provide just punishment; to
afford adequate deterrence; and to protect the public. Now,
that’s the thing that concerns me the most. He’s had chance
after chance after chance and he continues to do what he’s
not supposed to do which is something very, very danger-
ous. So what I have to do is to do the best I can to protect
the public.
In short, Finley totally overlooks the district court’s comprehensive
analysis of § 3553(a) which included Finley’s criminal history, see 18
14 UNITED STATES v. FINLEY
U.S.C. § 3553(a)(1); the seriousness of driving under the influence as
"a danger to everyone who drives," see id. § 3553(a)(2)(A); his ongo-
ing lack of respect for the law as evidenced by his repeated drinking
and driving, even on a suspended license, see id.; the need to deter
future criminal conduct, see id. § 3553(a)(2)(B); and the need to pro-
tect the public from Finley, who has "had chance after chance after
chance and he continues to do what he’s not supposed to do which
is something very, very dangerous," see id. § 3553(a)(2)(C). The court
concluded its detailed analysis by recognizing that it had the discre-
tion and the responsibility "to do what I think is right in this particular
case," and the court determined that the appropriate sentence was a
significant term of imprisonment, coupled with substance abuse treat-
ment while incarcerated.
In determining the reasonableness of a sentence, we "give due def-
erence to the district court’s decision," Gall, 128 S. Ct. at 597, and for
the reasons given, we conclude that Finley’s sentence was not unrea-
sonable in light of the § 3553(a) factors.
Because we have concluded that the district court’s sentence was
neither procedurally erroneous nor substantively unreasonable, as
those standards are articulated in Gall, we need not proceed to the
secondary question of whether Finley’s sentence was "plainly unrea-
sonable," the standard applicable here. See Crudup, 461 F.3d at 439.
The judgment of the district court is
AFFIRMED.