UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HERBERT LEVI VENABLE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:07-cr-00068-REP)

Submitted: April 16, 2008 Decided: June 16, 2008

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Amy L. Austin,

Frances H. Pratt, Assistant Federal Public Defenders, Richmond,

Virginia, for Appellant. Chuck Rosenberg, United States Attorney,

Matthew C. Ackley, Special Assistant United States Attorney,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Herbert Levi Venable appeals from his 120-month sentence

imposed pursuant to his guilty plea to distribution of crack

cocaine. On appeal, Venable contends that the district court

applied the incorrect procedural framework in determining his

sentence and that his sentence was greater than necessary to serve

the goals of sentencing. Finding no abuse of discretion, we

affirm.

I.

At his sentencing hearing, Venable moved for a downward

departure under U.S. Sentencing Guidelines Manual § 4A1.3 (2006),

arguing that his career offender designation over-represented his

criminal history. Venable’s qualifying convictions were for

burglary while armed with a deadly weapon with the intent to commit

murder and malicious wounding in 1980 and possession of heroin with

the intent to distribute as an accommodation in 2000. While the

burglary offense was more than twenty years old at the time of

Venable’s current offense, his parole/probation for that offense

was revoked four times, resulting in a cycle of release and

re-incarceration continuing from 1982 until 1994, when Venable was

finally discharged from supervision. Venable’s criminal history

also included six misdemeanor assault or assault and battery

convictions and numerous misdemeanor convictions for writing bad
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checks, petit larceny, trespassing, possession of marijuana,

obstruction of justice, making a false report to a police officer,

contempt of court, and driving on a suspended license. Venable’s

criminal history points placed him in criminal history category VI,

even absent the career offender designation. The court denied the

motion to depart, finding that Venable’s criminal history was not

atypical for career offenders and did not significantly overrepresent his criminal history or the likelihood he would commit

other crimes. 

Venable also requested a variance sentence of sixty months.

The district court considered the small quantity of drugs at issue

(.118 grams of crack cocaine), the seriousness of the offense,

Venable’s “intermediate” role in the offense, and the age of his

first career offender predicate conviction, and found that a

variance would be appropriate. However, the court found that

Venable’s history was lengthy and included many serious

misdemeanors. The court also noted that Venable had demonstrated

an inability to follow the law or take advantage of prior leniency.

The court then imposed a variance sentence of 120 months. 

II.

Venable first asserts that his sentence was procedurally

erroneous because (1) when considering his motion for a departure

the court incorrectly considered whether Venable’s criminal history
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category over-represented his criminal history rather than whether

the career offender designation over-represented his criminal

history and (2) the court failed to sufficiently explain how such

a long period of incarceration furthered any of the sentencing

goals better than a sixty-month sentence would have.

First, under USSG § 4B1.3(b)(1), a departure is only

available if “the defendant’s criminal history category

substantially over-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit

other crimes.” Career offender status is only mentioned as a

limitation; specifically, career offenders are only eligible for a

one-category reduction. USSG § 4A1.3(b)(3). Under the applicable

guideline, career offender status does not require any different

analysis by the district court. 

Thus, the court properly considered both whether

Venable’s criminal history was so minor that it rendered his an

“unusual” career offender case and whether category six overstated

his criminal history. See United States v. Spencer, 25 F.3d 1105,

1113 (D.C. Cir. 1994) (holding that court must determine whether

career offender’s history is “unusual” compared to other career

offenders prior to departing under § 4A1.3); United States v.

Stockton, 349 F.3d 755, 764 (4th Cir. 2003) (§ 4A1.3 departure

requires analysis of whether criminal history category exaggerates

criminal record even when defendant is a career offender).
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Accordingly, there was no procedural error in the court’s analysis

of whether to depart under § 4A1.3.

Turning to Venable’s second claim of procedural error,

Venable asserts that the district court was required to explicitly

state why a 120-month term of imprisonment served the goals of

sentencing better than the 60-month term urged by Venable.

However, there is no such procedural requirement. The district

court’s explanation of the sentence imposed should provide some

indication that it considered the 18 U.S.C.A. § 3553 (West 2000 &

Supp. 2007) factors and the potentially meritorious arguments

raised by the parties at sentencing. United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006), cert. denied, 127

S. Ct. 3044 (2007). 

Here, the court clearly considered both the statutory

factors and the arguments of the parties. The suggestion of a

specific sentence by the defendant does not place any further

requirements on the district court. Accordingly, there was no

procedural error.

III.

Finally, Venable contends that the district court’s

sentence was greater than necessary to comply with the statutory

sentencing goals set forth in § 3553. Specifically, Venable

asserts that such a lengthy sentence for an offense involving less
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than an eighth of a gram of crack cocaine does not promote respect

for the law. In addition, Venable states that a shorter sentence

would still have had a strong deterrent effect given the short

sentences Venable had served in the past. Finally, Venable

contends that he is not the “prototypical” career offender and,

thus, his sentence created an unwarranted disparity.

We will affirm a sentence so long as it is within the

statutorily prescribed range and is reasonable. United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Reasonableness

review focuses on whether the district court abused its discretion.

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When

sentencing a defendant, the district court must (1) properly

calculate the guideline range; (2) determine whether a sentence

within that range serves the § 3553(a) factors in light of the

arguments presented by the parties; (3) implement mandatory

statutory limitations; and (4) explain its reasons for selecting a

sentence. See Gall v. United States, 128 S. Ct. 586, 596-97

(2007). Even if the reviewing court would have reached a different

sentencing result on its own, this fact alone is insufficient to

justify reversal of the district court. Pauley, 511 F.3d at 474.

Here, the district court properly calculated the

guideline range, determined that a sentence outside that range

would serve the § 3553(a) factors, and explained its reasons for

choosing the sentence that it did. The district court considered
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the small amount of drugs involved in the offense as well as the

age of one of Venable’s prior convictions in imposing a variance

sentence below the Guideline range. Moreover, Venable presents

only conclusory arguments that his sentence created a disparity

with other career offenders with similar prior convictions. Based

on the record as a whole, the district court properly considered

all the factors and arguments in arriving at its sentence. We

conclude that there was no abuse of discretion.

Accordingly, we affirm Venable’s sentence. 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