UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4401

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PHYTEAF PHEQUAN MCCORMICK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Wilmington. Louise W. Flanagan, District Judge. (7:17-cr-00120-FL-1)

Submitted: March 29, 2019 Decided: April 19, 2019

Before DIAZ and QUATTLEBAUM, Circuit Judges, HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, 

for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, 

Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Phyteaf Phequan McCormick appeals the 90-month sentence imposed following 

his guilty plea to possession of ammunition by a convicted felon, in violation of 18 

U.S.C. §§ 922(g)(1), 924 (2012). On appeal, McCormick argues that the district court’s 

upward variant sentence—33 months above the high end of the Sentencing Guidelines 

range—is substantively unreasonable.*

 We affirm.

In determining whether McCormick’s above-Guidelines-range sentence is

substantively reasonable, “we consider whether the sentencing court acted reasonably 

both with respect to its decision to impose such a sentence and with respect to the extent 

of the divergence from the sentencing range.” United States v. Washington, 743 F.3d 

938, 944 (4th Cir. 2014) (internal quotation marks omitted). “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) (citations and internal quotation marks 

omitted). Because our review is ultimately for an abuse of discretion, see Gall v. United 

States, 552 U.S. 38, 51 (2007), “we give due deference to the district court’s decision that 

the [18 U.S.C.] § 3553(a) [(2012)] factors, on a whole, justify the extent of the variance,” 

United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal quotation marks 

omitted). “[E]ven [if] we might reasonably conclude that a different sentence is 

 * McCormick does not contend that his Guidelines range was miscalculated.

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appropriate, that conclusion, standing alone, is an insufficient basis to vacate the district 

court’s chosen sentence.” Id. (alterations and internal quotation marks omitted).

Our review of the record confirms that McCormick’s sentence is substantively 

reasonable. In imposing an upward variant sentence, the district court considered 

McCormick’s criminal history, the offense conduct, and the need for the sentence 

imposed to promote respect for the law, deter McCormick from engaging in future 

criminal conduct, and protect the community. McCormick argues that his offense 

conduct and criminal history should not have been used to support the upward variance as 

such factors should be principally accounted for in the Guidelines range. This assertion 

is misplaced because “a fact that is taken into account in computing a Guidelines range is 

not excluded from consideration when determining whether the Guideline[s] sentence 

adequately serves the four purposes of § 3553(a)(2).” United States v. Bollinger, 798 

F.3d 201, 221 (4th Cir. 2015) (internal quotation marks omitted). 

Accordingly, 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 this court and argument would not aid the decisional process.

AFFIRMED

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