UNITED STATES v. ALLEN (2019)

Matthew Christopher Allen appeals his 36-month sentence for making a false statement during the attempted acquisition of a firearm, in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(3) (2012). Allen’s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concluding that there are no meritorious issues for appeal, but questioning whether Allen’s upward variant sentence is reasonable. Allen was informed of his right to file a pro se supplemental brief but has not done so. We affirm.

“We ‘review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.’ ” United States v. Blue, 877 F.3d 513, 517 (4th Cir. 2017) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. Gall, 552 U.S. at 51, 128 S.Ct. 586. We consider whether the sentence imposed is substantively reasonable based on “the totality of the circumstances.” Id. “While a district court’s explanation for the sentence must support the degree of the variance, it need not find extraordinary circumstances to justify a deviation from the Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (internal quotation marks omitted). “We must defer to the district court and affirm a reasonable sentence, even if we would have imposed something different.” United States v. Bolton, 858 F.3d 905, 915 (4th Cir. 2017) (internal quotation marks omitted).

Here, the district court properly calculated the advisory Sentencing Guidelines range of 10 to 16 months’ imprisonment and sufficiently explained its reasons for imposing an upward variance after considering the 18 U.S.C. § 3553(a) (2012) factors. With respect to the nature and circumstances of the offense, the court noted that Allen had made multiple death threats to his wife and specifically found that Allen would have killed his wife had he successfully acquired a gun. With respect to the court’s consideration of the history and characteristics of the defendant, the court observed that Allen and his wife had a violent relationship and that Allen had difficulty controlling his anger. The court also explained that it had considered the need to promote respect for the law, the need for deterrence, and the need to protect the public from further crimes by Allen. Although Allen argues that his sentence creates an unwarranted disparity compared to defendants with similar records, there is nothing to suggest that those cases involved facts similar to Allen’s case, especially in light of the district court’s finding that Allen would have killed his wife had he successfully acquired a gun. We conclude that the district court did not abuse its discretion in varying upward and that Allen’s 36-month sentence is reasonable.

In accordance with Anders, we have reviewed the entire record in this case and have identified no meritorious issues for appeal. We therefore affirm the judgment of the district court. This court requires that counsel inform Allen, in writing, of the right to petition the Supreme Court of the United States for further review. If Allen requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Allen. 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

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.