UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4104
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARRIAN JARRELL ABBOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00426-CCE-1)
Submitted: September 30, 2016 Decided: October 28, 2016
Before MOTZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert A.J. Lang, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrian Jarrell Abbott appeals from his 84-month sentence
imposed after a remand for resentencing. Abbott had originally
been sentenced to 15 years in prison, after a finding that he
qualified as an armed career criminal. The sentence was imposed
to run partially concurrently with his state sentence. In
Abbott’s prior appeal, we vacated his sentence based on the
finding that one of the predicates used to support the armed
career criminal enhancement was no longer a proper predicate
after Johnson v. United States, 135 S. Ct. 2551 (2015). On
remand, the district court recalculated Abbott’s Guidelines
range without the armed career criminal enhancement and imposed
an 84-month sentence consecutive to his state sentence. Abbott
timely appealed.
Abbott now contends that his new sentence is procedurally
and substantively unreasonable. We review a sentence imposed by
a district court under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
reviewing a sentence, we must first ensure that the district
court committed no procedural error, such as failing to
calculate or improperly calculating the Guidelines range,
treating the Guidelines as mandatory, failing to consider the 18
U.S.C. § 3553(a) (2012) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
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chosen sentence. Gall, 551 U.S. at 51. If there are no
procedural errors, we then consider the substantive
reasonableness of the sentence. Id. A substantive
reasonableness review entails taking into account the totality
of the circumstances. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007) (quotations and citation omitted). A
sentence within the correctly calculated Guidelines range is
presumptively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). Such
a presumption can only be rebutted by a showing that the
sentence is unreasonable when measured against the § 3553(a)
factors. Id.
“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). Accordingly, a sentencing court must
apply the relevant § 3553(a) factors to the particular facts
presented and must “state in open court” the particular reasons
that support its chosen sentence. Id. (internal quotation marks
omitted). Stating in open court the particular reasons for a
chosen sentence requires the district court to set forth enough
to satisfy this court that the district court has a reasoned
basis for its decision and has considered the parties’
arguments. Id. Carter, though, does not require a sentencing
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court to “robotically tick through” otherwise irrelevant
subsections of § 3553(a). Id. at 329 (quoting United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006)).
Under U.S. Sentencing Guidelines Manual § 5G1.3(c) (2013),
in any case involving an undischarged term of imprisonment, “the
sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.” In reaching its decision,
the court should consider the § 3553(a) sentencing factors, the
type and length of the undischarged sentences, the time served
and the time likely to be served on the undischarged sentences,
whether the undischarged sentence was imposed in state court or
federal court, and any other circumstances relevant to the
determination. See USSG § 5G1.3 (comment. n.3(A)).
Abbott first contends that the district court provided an
insufficient explanation for running the sentence consecutively
to his state sentence. However, the court noted the reduced
length of Abbott’s Guidelines range on resentencing, the
unrelated nature of the state conviction, and Abbott’s lengthy
and violent criminal history. The court also considered
Abbott’s previous lengthy incarceration and the failure of that
sentence to deter him from the instant conduct. The court
further heard from Abbott regarding certain potentially
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mitigating factors and explicitly stated that it considered the
fact that Abbott pled only to possession of ammunition and that
that no other illegal conduct was happening at the time. We
find that the court set forth sufficient reasoning supporting
the within-Guidelines sentence and the decision to run the
sentence consecutively to Abbott’s state sentence.
Turning to the substantive reasonableness of Abbott’s
sentence, he argues that his mitigating arguments sufficiently
rebutted the presumptive reasonableness of the within-Guidelines
sentence. We conclude there was no abuse of discretion because
the district court considered the arguments by both parties and
rationally found that a consecutive sentence was appropriate.
While the court might have imposed a lower or concurrent
sentence given the mitigating circumstances cited by Abbott, the
mere fact that the court did not consider the mitigating
circumstances worthy of a reduction does not render a sentence
unreasonable. Because there is a range of permissible outcomes
for any given case, we must resist the temptation to “pick and
choose” among possible sentences and rather must “defer to the
district court’s judgment so long as it falls within the realm
of these rationally available choices.” United States v.
McComb, 519 F.3d 1049, 1053 (10th Cir. 2007); see also United
States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting
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substantive reasonableness “contemplates a range, not a point”
(internal quotation marks omitted)).
Accordingly, we affirm Abbott’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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