USCA4 Appeal: 23-4138 Doc: 24 Filed: 02/05/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4138

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GUSSENER SOVIA AUGUSTUS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:22-cr-00030-TDS-1)

Submitted: January 30, 2024 Decided: February 5, 2024

Before KING, AGEE, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Tracy M. Williams- Durham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4138 Doc: 24 Filed: 02/05/2024 Pg: 2 of 5

PER CURIAM:

Gussener Sovia Augustus pled guilty to possession of a firearm by a felon, in

violation of

(g)(1), 924(a)(2). ∗ The district court sentenced Augustus to

120 months of imprisonment after finding that the

(a) factors warranted

an upward variance from the advisory Sentencing Guidelines range. Augustus appeals,

arguing that his sentence is procedurally and substantively unreasonable. Finding no error,

we affirm.

“We review the reasonableness of a sentence under

(a) using an

abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,

or significantly outside the Guidelines range.’” United States v. Nance,

(4th Cir. 2020) (quoting Gall v. United States,

(2007)). In performing that

review, we first “evaluate procedural reasonableness, determining whether the district court

committed any procedural error, such as improperly calculating the Guidelines range,

failing to consider the § 3553(a) factors, or failing to adequately explain the chosen

sentence.” Nance,

. If “the district court has not committed procedural

error,” we then assess the substantive reasonableness of the sentence.

∗ Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions; the new penalty provision in

(a)(8) sets forth a statutory maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer Communities Act,

(c),

, 1329 (2022). The 15- year statutory maximum does not apply in this case, however, because Augustus committed his offense prior to the June 25, 2022, amendment of the statute.

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We are satisfied that Augustus’ sentence is procedurally reasonable. Augustus first

contends that the district court erred in failing to consider a lesser departure from the

Guidelines range, citing U.S. Sentencing Guidelines Manual § 4A1.3(a), p.s. (2021).

However, the district court applied an upward variance pursuant to § 3553(a), and,

accordingly, was not required to state whether a lesser departure from the Guidelines range

was warranted. Cf. United States v. McNeil,

(4th Cir. 2010)

(discussing procedure when district court applies upward departure under Guidelines).

Augustus also argues that the district court imposed a substantively unreasonable

sentence. “When considering the substantive reasonableness of a prison term, we examine

the totality of the circumstances to see whether the sentencing court abused its discretion

in concluding that the sentence it chose satisfied the standards set forth in § 3353(a).”

United States v. Arbaugh,

(4th Cir. 2020) (brackets and internal

quotation marks omitted). “Where, as here, the district court imposes a sentence outside

of the Guidelines range, [we] must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance.” United States

v. Provance,

(4th Cir. 2019). Though we consider the extent of the

deviation, we also “give due deference to the district court’s determination that the . . .

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. (internal quotation

marks omitted). “The fact that we might have imposed a different sentence is insufficient

to justify reversal of the district court.” Id.

The district court, after considering the statutory factors and advisory Guidelines

range of 57 to 71 months’ imprisonment, determined that a 120-month sentence was

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appropriate. The court thoroughly explained the reasons for this decision, citing the serious

nature of the offense of conviction, as Augustus, a felon with an extensive criminal history,

possessed a firearm, fentanyl, and items used for distribution of controlled substances when

authorities located him to serve an arrest warrant for a drug charge. Augustus also had

another firearm and items indicating drug distribution at his residence, and only a few

months prior to his arrest, had been arrested for discharging a firearm in a parking lot. In

addition, Augustus had acquired one of the firearms through a straw purchase as he was

prohibited from possessing firearms because he was a felon. The court concluded that the

circumstances of the offense demonstrated that Augustus had a complete disregard for the

law.

The court also discussed Augustus’ criminal history, noting that he had several prior

convictions, beginning at the age of 16, that did not receive criminal history points due to

their age. While many of those convictions were incurred when Augustus was young, he

continued to engage in criminal behavior his entire adult life. In recounting Augustus’

criminal history, the district court observed that Augustus had received several lenient

sentences that had not deterred his criminal conduct and then received a very lengthy

sentence for robbery with a dangerous weapon, among other charges. Augustus then

engaged in the current criminal conduct within three years from his release from

incarceration for those convictions. Moreover, many of Augustus’ prior convictions

involved the use of firearms and robbery.

Based on these factors, the district court concluded that Augustus was a dangerous

individual with a firearm who was not deterred from criminal conduct by a prior significant

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sentence. The court determined that the public needed to be protected from Augustus’

further criminal offenses. Thus, although the court acknowledged Augustus’ age and his

efforts to earn a high school equivalence degree, the totality of the circumstances

demonstrated that the 120-month sentence was sufficient but not greater than necessary to

serve the statutory sentencing purposes. Based on the factors identified by the district

court, we conclude that the sentence is substantively reasonable.

Accordingly, we affirm the judgment of the district court. We dispense with oral

argument because the facts and contentions are adequately presented in the materials before

this court and argument would not aid in the decisional process.

AFFIRMED

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