UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-5130

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

RANDY J. LINNIMAN, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

District Judge. (7:07-cr-00037-D-1) 

Submitted: February 19, 2009 Decided: March 19, 2009 

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C., 

Jacksonville, North Carolina, for Appellant. George E. B. 

Holding, United States Attorney, Anne M. Hayes, David A. 

Bragdon, Assistant United States Attorneys, Raleigh, North 

Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Randy J. Linniman appeals his conviction and 168-month 

departure sentence after pleading guilty pursuant to a plea 

agreement to unlawful transfer of a firearm, in violation of 

26 U.S.C. §§ 5812, 5861, 5871 (2006), and unlawful possession of 

firearms with altered serial numbers, in violation of 18 U.S.C. 

§§ 922(k), 924 (2006). Linniman asserts that the district court 

erred when it imposed a departure sentence: (i) without first 

affording him adequate notice that it planned to depart upward; 

(ii) that was too extensive for the crimes to which he pled 

guilty; and (iii) without sufficient analysis to support the 

departure sentence. Finding no error, we affirm. 

 Because Linniman did not object to the lack of Fed. R. 

Crim. P. 32(h) notice in the district court, this court reviews 

this issue for plain error. United States v. Muhammad, 478 F.3d 

247, 249 (4th Cir. 2007). Rule 32(h) requires the sentencing 

court to give the parties reasonable notice when it is 

considering a departure on a ground not identified as a possible 

basis for departure either in the presentence report or in a 

party's prehearing submission. Fed. R. Crim. P. 32(h). Because 

the district court imposed a departure sentence based on the 

same grounds identified by the Government in its upward 

departure motion, the district court was not required to provide 

Rule 32 notice. 

2 
 Although Linniman does not dispute the legal or 

factual correctness of the district court’s findings at 

sentencing and does not claim that the district court was 

unjustified in departing under the relevant Guidelines 

provisions, Linniman does assert that his sentence is “close to 

the maximum” and that the district court did not provide “a 

rigorous analysis” before imposing the sentence.* We conclude 

that the district court provided ample analysis of the reasons 

it believed Linniman’s departure sentence was warranted, not 

only during Linniman’s sentencing hearing, but also in a 

detailed sentencing memorandum. Given the significant risk 

associated with the particular conduct for which Linniman was 

convicted, the district court’s meaningful articulation of its 

consideration of the 18 U.S.C. § 3553(a) (2006) factors, and its 

careful consideration of reasons warranting a departure from the 

Guidelines range, we also find that the extent of Linniman’s 

departure sentence was reasonable. See United States v. 

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). 

 *

 Although Linniman also asserts that the district court 

erred by relying on conduct of which he was acquitted in a 

state court jury trial, this argument is meritless. See United 

States v. Watts, 519 U.S. 148, 155-56 (1997) (holding that 

sentencing courts may take acquitted conduct into account when 

determining the appropriate sentence because a lower standard of 

proof applies at the sentencing stage). 

3 
4 

 Based on the foregoing, 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 the court and argument would not aid the decisional 

process. 

AFFIRMED