United States of America v. Richard Kirk Maynor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD KIRK MAYNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:14-cr-00121-BO-1)
Submitted: September 11, 2015 Decided: October 16, 2015
Before MOTZ, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Richard Kirk Maynor appeals his 72-month upward variant
prison sentence, which was imposed after he pled guilty,
pursuant to a plea agreement, to one count of possession of a
stolen firearm and ammunition, in violation of 18 U.S.C.
§§ 922(j), 924(a)(2) (2012). Maynor’s sole argument is that the
district court procedurally erred when it imposed an upward
variant sentence without addressing his non-frivolous arguments
in favor of a within-Guidelines sentence. Finding no error, we
affirm.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can “conclude that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). Thus, where,
as here, “an aggrieved party sufficiently alerts the district
court of its responsibility to render an individualized
explanation” by drawing arguments from 18 U.S.C. § 3553 (2012)
“for a sentence different than the one ultimately imposed,” the
party sufficiently “preserves its claim.” Id. at 578.
We conclude that the district court did not abuse its
discretion when it imposed Maynor’s upward variant sentence. A
district court “has flexibility in fashioning a sentence outside
of the Guidelines range,” and need only “set forth enough to

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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)
(brackets omitted). Thus, “a district court’s explanation
should provide some indication (1) that the court considered the
§ 3553(a) factors with respect to the particular defendant; and
(2) that it has also considered the potentially meritorious
arguments raised by both parties about sentencing[.]” United
States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006)
(internal citations omitted).
“[I]n determining whether there has been an adequate
explanation, we do not evaluate a court’s sentencing statements
in a vacuum[;]” rather, “[t]he context surrounding a district
court’s explanation may imbue it with enough content for [the
appellate court] to evaluate both whether the court considered
the § 3553(a) factors and whether it did so properly.” Id. at
381. The context of a defendant’s sentencing can also make
clear that the district court considered defense counsel’s
arguments for a different sentence but found them insufficient.
See Rita v. United States, 551 U.S. 338, 359 (2007).
At sentencing, the government argued for an upward
departure, emphasizing Maynor’s “many unscored convictions.”
J.A. 32. Because Maynor’s criminal history category was already
category VI, the government asked the district court to depart

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from an offense level of 17 to 21 to reflect Maynor’s unscored
convictions, which the government catalogued. J.A. 34-35.
Maynor responded with non-frivolous arguments for a within-
Guidelines sentence, addressing each of those unscored
convictions and arguing against using them to depart. J.A. 36-
37. The court responded: “You don’t have to go through all of
that. You can do it if you want but that’s not going to
influence me at all. I’m going to vary. I’m not going to
upwardly depart . . .” J.A. 37.
Reviewing this statement in context, we conclude that the
district court found it unnecessary for Maynor to rebut the
government on each unscored conviction because the court had
decided to reject the government’s departure motion. We further
conclude that the district court was engaged during Maynor’s
sentencing hearing and said enough to satisfy us that it
considered the parties’ arguments and had a reasoned basis for
imposing the upward variant sentence.
Accordingly, we affirm the district court’s judgment. 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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