United States v. Saunders

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4736

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOHN SAUNDERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:09-cr-00041-HEH-2)

Submitted: September 30, 2010 Decided: November 9, 2010

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David P. Morgan, Richmond, Virginia, for Appellant. Michael
Arlen Jagels, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

John Saunders pled guilty to two counts of

distribution of heroin, and was sentenced to a term of 45

months’ incarceration. Saunders appealed, and counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that in his view there are no meritorious grounds for

appeal, but questioning whether Saunders’ sentence was

reasonable. Saunders was informed of his right to file a pro se

supplemental brief but has not done so. We affirm.

We review Saunders’ sentence for abuse of discretion.

Gall v. United States, 552 U.S. 38, 51 (2007). The first step

in this review requires us to ensure that the district court

committed no significant procedural errors. United States v.

Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct.

476 (2008). Significant procedural errors include “‘failing to

calculate (or improperly calculating) the Guidelines range,

. . . failing to consider the [18 U.S.C.] § 3553(a) factors,

. . . or failing to adequately explain the chosen sentence--

including an explanation for any deviation from the Guidelines

range.’” United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009) (quoting Gall, 552 U.S. at 51). We then consider the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances. Gall, 552 U.S. at 51. When

reviewing a sentence on appeal, we presume a sentence within the

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properly-calculated Guideline range is reasonable. United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

Here, the district court departed upward in

calculating the applicable Guideline range, on the ground that

Saunders’ criminal history category under-represented the

seriousness of his criminal history. USSG § 4A1.3(a). When

reviewing a departure, we consider “whether the sentencing court

acted reasonably both with respect to its decision to impose

such a sentence and with respect to the extent of the divergence

from the sentencing range.” United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). Under

USSG § 4A1.3(a)(1), “[i]f reliable information indicates that

the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other

crimes, an upward departure may be warranted.”

We have reviewed the record and conclude that the

district court’s decision to depart upward was procedurally and

substantively reasonable. The record reveals that Saunders had

a criminal history category of VI, which did not take into

account approximately 26 of his prior convictions. Saunders’

most recent offenses were committed only four months after he

served a two-year term for violating probation. The court noted

that Saunders’ criminal activity over the years was virtually

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unabated, that there was a strong likelihood that it would

continue upon his release, and that prior shorter terms had not

effectively deterred his criminal conduct. Thus the court

properly concluded that an upward departure from criminal

history category VI was warranted, and proceeded to employ the

proper methodology for recalculating Saunders’ advisory range to

41 to 51 months. See USSG § 4A1.3(a)(4)(B).

In addition, the extent of the departure was

reasonable. As we have noted, the two-year term completed by

Saunders only a few months before he committed the instant

offenses clearly was insufficient to deter him from further

criminal acts. The Guidelines sentencing range of 9 to 15

months was insufficient to reflect the seriousness of his

criminal history, or the likelihood that he would commit future

crimes. We therefore conclude that the extent of the district

court’s departure was reasonable. Further, the district court

considered the parties’ arguments and relevant § 3553(a)

factors, including Saunders’ history and characteristics and the

need for the sentence to protect the public, and reasonably

imposed a sentence in the middle of the recalculated advisory

range. We accordingly conclude that Saunders’ sentence is both

procedurally and substantively reasonable.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

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appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Saunders in writing of

his right to petition the Supreme Court of the United States for

further review. If Saunders requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Saunders. Finally, we deny Saunders’ second

motion for an extension of time in which to file a pro se

supplemental brief and 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