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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4097
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
TIMOTHY LEE BANKS,
Defendant Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, District
Judge. (6:09-cr-00012-nkm-1)
Submitted:
May 27, 2010
Decided:
June 16, 2010
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia,
for Appellant.
Timothy J. Heaphy, United States Attorney, R.
Andrew Bassford, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Lee Banks pled guilty without a plea agreement
to two counts of possession of a firearm by a convicted felon,
18 U.S.C. 922(g)(1) (2006), and was sentenced to concurrent
eighty-four-month prison terms.
He now appeals his sentence,
arguing that it is unreasonable.
We affirm.
I
Banks base offense level was 20.
Guidelines
Manual
2K2.1(a)(4)(A)
See U.S. Sentencing
(2009).
Three
subtracted for acceptance of responsibility.
levels
were
See USSG 3E1.1.
Banks total offense level was 17, his criminal history category
was
VI,
and
his
advisory
Guidelines
range
was
51-63
months.
There were no objections to the presentence report.
At
sentencing,
defense
counsel
argued
that
Banks
psychological and physical problems, as well as the fact that he
was forty-nine and therefore statistically less likely to commit
future
crimes,
Guidelines
justified
range.
The
sentence
United
at
States
the
low
replied
end
that
of
the
light
sentences Banks had received for past offenses had done little
to deter his criminal conduct.
In pronouncing sentence, the court stated that Banks
posed a danger to the community.
The court referred to Banks
criminal history, much of which was not included when computing
2
his
twenty
criminal
history
offenses were violent.
points.
Many
of
Banks
past
The court agreed that a person of Banks
age ordinarily would no longer be violent; however, this was not
the
case
with
Banks,
whom
the
court
described
as
rather
lawless and dangerous person. The court commented that Banks
could receive needed treatment for his physical and emotional
problems while in prison.
Of paramount concern to the court in
sentencing Banks was the danger of recidivism and the need to
protect
the
community
from
further
crimes.
This,
the
court
found, warranted an upward departure of considerable months.
The court sentenced Banks to concurrent eighty-fourmonth prison terms.
it
had
considered
In imposing sentence, the court stated that
the
18
U.S.C.
3553(a)
(2006)
sentencing
factors as well as the advisory Guidelines range.
II
We review a sentence for reasonableness, applying an
abuse-of-discretion standard.
38, 51 (2007); see also
742
(4th
Cir.),
cert.
Gall v. United States, 552 U.S.
United States v. Seay, 553 F.3d 732,
denied,
130
S.
Ct.
127
(2009).
Our
initial review is for significant procedural error, including
failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the 3553(a) factors, selecting a sentence based on clearly
3
erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.
We
the
sentence
Gall, 552 U.S. at 51.
next
consider
imposed.
the
Id.
substantive
At
this
reasonableness
stage,
we
take
of
into
account the totality of the circumstances, including the extent
of
any
variance
district
from
court
the
decides
Guidelines
to
impose
range.
a
If
Id.
sentence
outside
the
the
Guidelines range, it must ensure that its justification supports
the degree of the variance.
155,
161
(4th
Cir.),
cert.
United States v. Evans, 526 F.3d
denied,
129
S.
Ct.
476
(2008)
(quoting Gall, 552 U.S. at 51).
We give due deference to the
district
the
courts
decision
that
3553(a)
whole, justify the extent of the variance.
factors,
on
Gall, 552 U.S. at
51.
Our
review
of
the
record
convinces
us
that
Banks
variant sentence is procedurally and substantively reasonable.
The district court properly calculated the advisory Guidelines
range,
considered
the
relevant
3553(a)
factors
and
the
parties arguments at sentencing, and sufficiently explained its
reasons for imposing the variant sentence.
III
We accordingly affirm.
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
