UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4145

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DECOVAN SEABROOK,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(2:05-cr-01322)

Submitted: January 31, 2008 Decided: February 12, 2008

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

D. Craig Brown, Florence, South Carolina, for Appellant. Reginald

I. Lloyd, United States Attorney, Columbia, South Carolina, Alston

Calhoun Badger, Jr, Assistant United States Attorney, Charleston,

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Decovan Seabrook was convicted by a jury of knowingly

using and carrying a firearm during and in relation to, and

possessing a firearm in furtherance of, a drug trafficking crime,

18 U.S.C. § 924(c)(1)(A)(iii) (2000). He was sentenced to 360

months’ imprisonment. His counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting there are no

meritorious issues for appeal, but raising for the court’s

consideration (1) whether the district court erred in denying

Seabrook’s motion to suppress; and (2) whether the district court

erred in granting the Government’s motion for an upward departure

pursuant to U.S. Sentencing Guidelines Manual §§ 5K2.2, 5K2.21,

p.s. (2005). Seabrook has filed a pro se supplemental brief

asserting that the court erred in allowing the prosecutor to make

improper statements during the course of the trial. The Government

did not file a reply brief. After reviewing the record, we affirm.

This court reviews the factual findings underlying the

denial of a motion to suppress for clear error and the legal

conclusions de novo. United States v. Johnson, 400 F.3d 187, 193

(4th Cir. 2005). The evidence is construed in the light most

favorable to the prevailing party below. United States v. Seidman,

156 F.3d 542, 547 (4th Cir. 1998).

Seabrook first contests the voluntariness of his

statements made to law enforcement officers on the ground that they
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were taken by investigators in violation of Miranda v. Arizona, 384

U.S. 436 (1966). A statement is voluntary if it is “the product of

an essentially free and unconstrained choice by its maker.”

Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). An analysis

of the voluntariness of a statement is derived from the totality of

the circumstances. Id. at 226. The relevant determination

regarding voluntariness is whether government agents have overborne

the defendant’s will or left his “capacity for self-determination

critically impaired.” Id. at 225. After reviewing the record, we

conclude that the district court did not err in denying Seabrook’s

motion to suppress.

Seabrook also argues on appeal that the district court

erred in granting the Government’s motion for upward departure

under USSG §§ 5K2.2, 5K2.21, p.s. Following United States v.

Booker, 543 U.S. 220 (2005), a district court must engage in a

multi-step process at sentencing. The district court must

calculate the appropriate advisory Guidelines range by making any

necessary factual findings. United States v. Moreland, 437 F.3d

424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). The

district court should then afford the parties “an opportunity to

argue for whatever sentence they deem appropriate.” Gall v. United

States, 128 S. Ct. 586, 596 (2007). Then, the sentencing court

should consider the resulting advisory Guideline range in

conjunction with the factors set out in 18 U.S.C.A. § 3553(a) (West
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2000 and Supp. 2007), and determine whether the § 3553(a) factors

support the sentence requested by either party. Id. Considering

the factors in § 3553(a) does not require the sentencing court to

“robotically tick through” every subsection of § 3553(a). United

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

denied, 127 S. Ct. 3044 (2007). The sentencing court may not

presume that the Guidelines range is reasonable, and if it decides

to impose a sentence outside the Guidelines range it “must consider

the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.”

Gall, 128 S. Ct. at 596-97. 

The appellate court reviews a sentence for

reasonableness, focusing on whether the district court abused its

discretion, regardless of whether the sentence imposed is inside or

outside the Guidelines range. Gall, 128 S. Ct. at 597; United

States v. Pauley, ___ F.3d ___, 2007 WL 4555520 (4th Cir. Dec. 28,

2007). This involves two steps: first, examining the sentence for

significant procedural errors, and second, evaluating the substance

of the sentence. Pauley, 2007 WL 4555520 at *5. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Id. (internal quotations omitted). While the

appellate court may presume a sentence within the Guidelines range

to be reasonable, it may not presume a sentence outside the range
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to be unreasonable. Id. When reviewing a departure, the appeals

court considers “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. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.

2007). 

Here, Seabrook’s Guideline sentence was the minimum term

of imprisonment required by statute, i.e, ten years. See USSG

§ 2K2.4(b). Seabrook was ultimately sentenced to three times the

Guidelines sentence based on the Government’s motion for upward

departure. In light of the facts of this case and the district

court’s meaningful articulation of its consideration of the

§ 3553(a) factors and the bases for departure, we find the district

court’s decision to depart, and the extent of the departure,

reasonable. 

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

further find no merit to the claims raised in Seabrook’s pro se

supplemental brief. We therefore affirm Seabrook’s conviction and

sentence. This court requires that counsel inform Seabrook, in

writing, of the right to petition the Supreme Court of the United

States for further review. If Seabrook requests that a petition be

filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to
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withdraw from representation. Counsel’s motion must state that a

copy thereof was served on Seabrook. 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