United States of America v. Aaron Carmichael

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4279
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON CARMICHAEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-cr-00211-FL-1)
Submitted: December 23, 2015 Decided: January 12, 2016
Before NIEMEYER and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Aaron Carmichael pled guilty to possession of a firearm and
ammunition by a convicted felon. The district court varied
upward and sentenced Carmichael to 72 months’ imprisonment. On
appeal, Carmichael argues that the district court erred by
applying a two-level enhancement for possessing a stolen firearm
and by imposing a four-level upward variance. We affirm.
We review a sentence for procedural and substantive
reasonableness, applying “an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). “In assessing
the district court’s calculation of the Guidelines range, we
review its legal conclusions de novo and its factual findings
for clear error.” United States v. Cox, 744 F.3d 305, 308 (4th
Cir. 2014). “Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence,” id. (internal quotation marks omitted), that is, the
court must find these facts “more likely than not” to be true,
see United States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).
Having reviewed the record, we conclude that the district
court’s finding that the firearm Carmichael possessed was more
likely than not stolen was not clearly erroneous. Although the
firearm’s owner believed that the firearm had been mislaid, the
district court was not required to agree with this conclusion in
light of the facts indicating otherwise.

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Carmichael also challenges the upward variance imposed by
the district court. A 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). “In reviewing a variant
sentence, 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. Washington, 743 F.3d
938, 944 (4th Cir. 2014) (internal quotation marks omitted).
Having reviewed the record and the district court’s thorough
explanation of its sentence, we conclude that Carmichael’s
variance sentence is reasonable.
Accordingly, we affirm the judgment of the district court.∗
We dispense with oral argument because the facts and legal
∗ We note that, as Carmichael asserts in his reply brief,
the Government’s brief contains several factual statements that
are unsupported by the record. We decline to consider such
allegations on appeal. See Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989) (“[A]n appellate court normally
will not consider facts outside the record on appeal.”).

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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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