Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 14-4184
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
CHASE DESEAN FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00176-FL-1)
Submitted:
October 21, 2014
Decided:
December 23, 2014
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas
G.
Walker,,
United
States
Attorney,
Jennifer P. May-Parker, Phillip A. Rubin, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chase
Desean
Ferguson
appeals
from
his
63-month
sentence imposed pursuant to his guilty plea to possession of a

firearm
and
ammunition
by
convicted
felon.
On
appeal,
Ferguson argues that his sentence is substantively unreasonable

due to the extent of the departure imposed pursuant to U.S.
Sentencing
Guidelines
Manual
4A1.3
(2013)
(under-representation of criminal history category).
We affirm.
We review any criminal sentence, whether inside, just

outside,
or
significantly
reasonableness,
standard.
under
outside
a
the
Guidelines
deferential
range,
for
abuse-of-discretion
United States v. King, 673 F.3d 274, 283 (4th Cir.
2012); see Gall v. United States, 552 U.S. 38, 51 (2007).
When
the district court imposes a departure or variance sentence, we

consider
whether
the
sentencing
court
acted
reasonably
both
with respect to its decision to impose such a sentence and with

respect
range.
to
the
extent
of
the
divergence
from
the
sentencing
United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007).
The district court has flexibility in
fashioning a sentence outside of the Guidelines range, and need

only set forth enough to satisfy the appellate court that it
has considered the parties arguments and has a reasoned basis
for its decision.
United States v. Diosdado-Star, 630 F.3d 359,
364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)) (alteration omitted).
Where, as here, the defendant does not challenge the
procedural
sentence
reasonableness
only
for
abuse-of-discretion
of
his
substantive
sentence,
we
reasonableness,
standard.
Gall,
552
U.S.
review
the
applying
the
at
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

court
may
[i]f
depart
reliable
criminal
upward
of
an
applicable
information
indicates
category
substantially
history
seriousness
from
the
defendants
that
51;
United
A district
Guidelines
the
range
defendants
under-represents
criminal
history
the
or
likelihood that the defendant will commit other crimes.
the
USSG
4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d 326,

341
(4th
Cir.
2008)
(noting
that
an
under-representative
criminal history category is an encouraged basis for departure).

To determine whether a departure sentence is appropriate in such
circumstances, the Guidelines state that a court may consider
prior sentences not used in the criminal history calculation or
prior
conduct
not
resulting
in
conviction.
USSG
4A1.3(a)(2), p.s.
Ferguson argues that the courts departure to Criminal
History
unscored
Category
VI
exaggerated
convictions,
which
the
were
relatively short period of time.

3
importance
all
of
committed
his
prior
during
However, the district court
was well within its discretion to consider a large number of

prior convictions that did not result in any criminal history
points.
Moreover, the court did not rely exclusively on these
unscored convictions to support the upward departure.
It also
considered that Ferguson committed the instant offense shortly

after being released from prison, that he had been leniently
treated in the past, * that he faced pending charges, and that he
Ferguson contends that the district court erred in

concluding that North Carolina had treated him leniently.
He
draws an analogy to our recent decision in United States v.
Davis, 720 F.3d 215 (4th Cir. 2013).
In Davis, the defendant
had received one consolidated sentence for multiple violations
of North Carolina law, and the district court sentenced him as a
career offender based on that state court judgment. Id. at 216.
The defendant argued that the district court erred by applying
the career offender enhancement because under the plain
language of the Guidelines, a single consolidated sentence
cannot be counted as separate sentences.
Id. at 217.
We
agreed, holding that where a defendant receives a consolidated
sentence (or consolidated judgment) under North Carolina law, it
is one sentence and absent another qualifying sentence, the
[career offender] enhancement is inapplicable. 720 F.3d at 219
(internal
quotation
marks
omitted).
In
reaching
this
conclusion, we relied, in part, on the well-established
federalism principles which do not permit a federal court to
reject North Carolinas judgment as to the seriousness of a
North Carolina crime, prosecuted in a North Carolina court and
adjudicated by a North Carolina judge, merely because the
federal court might expect a more serious punishment.
Id.
(internal quotation marks and brackets omitted).
Ferguson contends that, just as the Davis court directed
district courts to respect North Carolinas sentencing scheme
when
considering
whether
to
apply
the
career
offender
enhancement, district courts similarly should respect North
Carolinas
treatment
of
consolidated
convictions
when
considering whether a defendants criminal history category is
adequate. We conclude that Fergusons argument is flawed.
In
(Continued)
4
posed a danger to the community.

considered
the
intervening
Finally, the court carefully
criminal
history
levels
and
explicitly concluded that they were insufficient to meet the

goals
of
sentencing.
We
conclude
that
the
extent
of
the
district courts departure from the Guidelines was permissible

and that its justifications were sufficiently compelling.
See
United States v. McNeill, 598 F.3d 161, 166-67 (4th Cir. 2010)
(affirming upward departure under 4A1.3).
For these reasons, we 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
addition to principles of federalism, we relied in Davis on the

plain language of the career offender enhancement, which makes
clear that there must be more than one prior sentence for the
enhancement to apply.
Id. at 219.
Thus, the focus for a
sentencing court when determining whether a defendant qualifies
as a career offender is the number of sentences, while the
factors involved in a departure for under-representation of
criminal history does not depend on how many sentences the
defendant received. As the Davis court clarified, Davis d[id]
not turn on state law, but rest[ed] on what the plain language
of the Guidelines demands. Id. at 220.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

October 21, 2014

December 23, 2014

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Unpublished opinions are not binding precedent in this circuit.

sentence imposed pursuant to his guilty plea to possession of a

Ferguson argues that his sentence is substantively unreasonable

(under-representation of criminal history category).

We review any criminal sentence, whether inside, just

United States v. King, 673 F.3d 274, 283 (4th Cir.

2012); see Gall v. United States, 552 U.S. 38, 51 (2007).

the district court imposes a departure or variance sentence, we

with respect to its decision to impose such a sentence and with

United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).

The district court has flexibility in

fashioning a sentence outside of the Guidelines range, and need

United States v. Diosdado-Star, 630 F.3d 359,

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

likelihood that the defendant will commit other crimes.

4A1.3(a)(1), p.s.; see United States v. Whorley, 550 F.3d 326,

criminal history category is an encouraged basis for departure).

relatively short period of time.

However, the district court

was well within its discretion to consider a large number of

Moreover, the court did not rely exclusively on these

unscored convictions to support the upward departure.

considered that Ferguson committed the instant offense shortly

Ferguson contends that the district court erred in

posed a danger to the community.

Finally, the court carefully

explicitly concluded that they were insufficient to meet the

district courts departure from the Guidelines was permissible

We dispense with oral

argument because the facts and legal contentions are adequately

addition to principles of federalism, we relied in Davis on the

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