United States of America v. Dominico Ramone Boulder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5153
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINICO RAMONE BOULDER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00189-FL-1)
Submitted: August 28, 2012 Decided: September 6, 2012
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Dominico Ramone Boulder, who pled guilty without a
plea agreement to one count of possession of a firearm by a
felon in violation of 18 U.S.C.A. §§ 922(g)(1), 924 (West 2000 &
Supp. 2012), appeals the district court’s amended judgment
entered after this court vacated his original seventy-month
sentence and remanded to the district court for resentencing in
accordance with United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). Boulder, who was resentenced to a term of
fifty-two months, which was fifteen months above the high end of
the Guidelines range, contends that the district court imposed
an unreasonable sentence by failing to adequately explain the
sentence variance. Boulder asserts that the circumstances of
the case did not warrant the sentence. Further, Boulder argues
that the four-level adjustment for discharging the firearm
adequately accounted for the nature of the offense, and that his
unscored convictions were too remote to support a variance.
Finding no error, we affirm.
This court reviews any criminal sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” for reasonableness, “under a deferential
abuse-of-discretion standard.” United States v. King, 673 F.3d
274, 283 (4th Cir. 2012), petition for cert. filed, No. 11-10786
(U.S. June 5, 2012); see Gall v. United States, 552 U.S. 38, 51

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(2007). When the district court imposes a departure or variant
sentence, this court considers “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). 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), cert. denied, 131 S. Ct. 2946 (2011).
“The fact that the appellate court might reasonably
have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall,
552 U.S. at 51. “This deference is due in part because the
sentencing judge is in a superior position to find facts and
judge their import and the judge sees and hears the evidence,
makes credibility determinations, has full knowledge of the
facts and gains insights not conveyed by the record.”
Diosdado-Star, 630 F.3d at 366 (internal quotation marks,
brackets, and citations omitted); see Rita, 551 U.S. at 357–58
(recognizing that the district court “has access to, and greater

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familiarity with, the individual case and the individual
defendant before [the court] than the Commission or the appeals
court”).
Because the district court identified multiple reasons
for its variance, all of which were based on the § 3553(a)
factors and related to the particular facts of Boulder’s case,
the variance is reasonable. See King, 673 F.3d at 284
(concluding that upward variant sentence was reasonable as it
was adequately supported by reference to those § 3553(a) factors
that “the court determined required the sentence ultimately
imposed”); Diosdado-Star, 630 F.3d at 366-67 (holding that an
upward variant sentence six years longer than the Guidelines
range was substantively reasonable because the district court
expressly relied on several of the § 3553(a) factors to support
the variance).
Accordingly, we affirm the district court’s amended
judgment. 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

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