United States v. Elswick, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4697
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
CECIL GEORGE ELSWICK, JR., a/k/a George C. Elswick,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge. (7:09-cr-00053-sgw-1)
Submitted:
March 30, 2011
Before MOTZ and

Circuit Judge.
KING,
Circuit
Decided:
Judges,
and
April 11, 2011
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,

Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Timothy J. Heaphy, United States Attorney, R. Andrew Bassford,
Assistant
United
States
Attorney,
Roanoke,
Virginia,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant
Cecil
George
Elswick,
Jr.
pled
guilty
to
possession of a firearm by a convicted felon, in violation of 18

U.S.C.
922(g)(1)
(2006),
and
unauthorized
wearing
of
the
uniform of an officer of the United States Army, in violation of

18 U.S.C. 702 (2006).
On appeal, Elswick argues the district
court abused its discretion when it imposed a forty-two month

sentence,
which
was
an
upward
variance
from
his
fifteen-to-
twenty-one month advisory Guidelines sentencing range.
For the
reasons
courts
explained
below,
we
affirm
the
district
judgment.
First, Elswick, relying on United States v. Moreland,
437 F.3d 424, 432 (4th Cir. 2006), maintains the district court
erred by failing to determine whether a departure sentence was
appropriate in this case before considering the imposition of a
variant
sentence
departure.
and
Elswicks
urges
us
to
treat
his
argument
is
foreclosed
sentence
by
our
as
recent
opinion in United States v. Diosdado-Star, 630 F.3d 359 (4th

Cir. 2011).
In Diosdado-Star, we recognized that, to the extent
that
Moreland
requires
district
court
to
first
consider
departure before deciding whether to vary from the guidelines

range, Moreland was overruled by the Supreme Courts decisions
in Gall v. United States, 552 U.S. 38 (2007), and Rita v. United
2
States, 551 U.S. 338 (2007).
See Diosdado-Star, 630 F.3d at 366
([A]s recognized in Evans, we find that Gall and Rita were

superseding
implicitly
contrary
decision[s]
overruled
Moreland . . . that
the
the
effect,
district
of
the
if
any,
court
Supreme
of
Court
the
should
language
first
whether departure is appropriate before varying.)

quotation marks and citation omitted).
that
look
in
to
(internal
Accordingly, we conclude
the district court acted within its discretion when it imposed a

variant, rather than departure, sentence.
Next,
failing
to
departure
Elswick
argues
incrementally
from
the
the
depart
Guidelines
and
district
explain
sentencing
court
its
range.
erred
by
incremental
See
United
States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007) ([E]ven
where
an
sentencing
upward
court
departure
must
depart
is
plainly
incrementally,
reasons for its departure.).
warranted,
explaining
a
the
However, this requirement for
departures does not apply here because, as discussed above, the

district
court
did
not
impose
departure
sentence.
Accordingly, this argument is without merit.

Finally, Elswick argues his forty-two month sentence
is substantively unreasonable.
Upon appellate review of the
substantive reasonableness of a sentence, this Court takes into

account the totality of the circumstances, including the extent
of any variance from the Guidelines range.
3
United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552
U.S. at 51).
support
the
variance.
Here, the totality of the circumstances amply

district
courts
significant
upward
sentencing
The record establishes Elswick has a well-documented,
longstanding
history
of
criminal
forgery, and passing bad checks.

sentence
although
behavior
involving
fraud,
The district courts variant
significant
deviation
from
Elswicks
advisory Guidelines sentencing range was carefully crafted to

take these facts into consideration.
We conclude Elswicks sentence is reasonable and we
therefore affirm the district courts 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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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

March 30, 2011

Before MOTZ and

April 11, 2011

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Randy V. Cargill,

Unpublished opinions are not binding precedent in this circuit.

possession of a firearm by a convicted felon, in violation of 18

uniform of an officer of the United States Army, in violation of

On appeal, Elswick argues the district

court abused its discretion when it imposed a forty-two month

twenty-one month advisory Guidelines sentencing range.

opinion in United States v. Diosdado-Star, 630 F.3d 359 (4th

departure before deciding whether to vary from the guidelines

States, 551 U.S. 338 (2007).

See Diosdado-Star, 630 F.3d at 366

([A]s recognized in Evans, we find that Gall and Rita were

whether departure is appropriate before varying.)

the district court acted within its discretion when it imposed a

reasons for its departure.).

However, this requirement for

departures does not apply here because, as discussed above, the

Accordingly, this argument is without merit.

Upon appellate review of the

substantive reasonableness of a sentence, this Court takes into

Here, the totality of the circumstances amply

The record establishes Elswick has a well-documented,

forgery, and passing bad checks.

The district courts variant

advisory Guidelines sentencing range was carefully crafted to

argument would not aid the decisional process.

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