UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4146

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FREDERICK ALANDO SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:08-cr-00137-FL-1)

Submitted: March 22, 2010 Decided: April 9, 2010

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Andrea T. Stubbs, Assistant Federal Public Defenders, Raleigh, 

North Carolina, for Appellant. George E. B. Holding, United 

States Attorney, Anne M. Hayes, Jennifer P. May-Parker, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Frederick Alando Smith pled guilty to bank robbery, 21 

U.S.C. § 2113(a) (2006), and was sentenced to ninety-five months 

in prison. Smith appeals, contending that his sentence is 

unreasonable. We affirm.

I

Smith’s base offense level was 20. See U.S. 

Sentencing Guidelines Manual § 2B3.1(a) (2008). Two levels were 

added because the property of a financial institution was taken, 

see USSG § 2B3.1(b)(1), and three levels were subtracted for 

acceptance of responsibility, see USSG § 3E1.1. Smith’s total 

offense level was 19. He had eleven criminal history points, 

placing him in criminal history category V. His advisory 

Guidelines range was 57-71 months. 

At sentencing, argument focused on the Government’s 

motion for upward departure, in which the Government asked that 

Smith be sentenced as a de facto career offender. The 

Government observed that many of Smith’s offenses were too 

remote to have been assigned criminal history points or were not 

counted for other reasons. Those crimes included common law 

robbery, assault with a deadly weapon inflicting serious injury, 

misdemeanor assault, passing worthless checks (over twenty 

counts), communicating threats, and possession of drug 
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paraphernalia. The Government contended that criminal history 

category V failed to adequately reflect the seriousness of 

Smith’s past criminal conduct or the likelihood that he would 

commit future crimes. Smith, through counsel, replied that a 

sentence within the advisory Guidelines range would be 

sufficient to satisfy sentencing purposes. 

After hearing from counsel and inviting Smith to 

speak, the district court concluded that a sentence outside the 

advisory Guidelines range was appropriate, and sentenced Smith 

to ninety-five months in prison. In pronouncing sentence, the 

court specifically mentioned many of the 18 U.S.C. § 3553(a) 

(2006) sentencing factors, including: the nature and 

circumstances of the offense; the need to protect the public 

from further crimes; the need to promote respect for the law; 

and the need to deter further criminal conduct. The court 

commented especially about Smith’s criminal history, which 

included engaging in larceny over a twenty-four-year period. 

These factors, the court found, warranted a sentence above the 

advisory Guidelines range, but lower than the sentence advocated 

by the Government. The court added that it had considered 

imposing a sentence greater than ninety-five months. However,

mitigating circumstances, including Smith’s physical and mental 

health, dissuaded the court from imposing a more severe 

sentence.
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The court commented that it could arrive at a ninetyfive-month sentence another way: by granting the Government’s 

departure motion. The court explained that, by following the 

methodology set forth in the Guidelines, it would reach a 

Guidelines range of 77-96 months and sentence Smith to ninetyfive months in prison.

II

We review a sentence for reasonableness, applying an 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007); see also United States v. Seay, 553 F.3d 732, 

742 (4th Cir.), cert. denied, 130 S. Ct. 127 (2009). Our 

initial review is for “significant procedural error,” including 

“failing to calculate (or improperly calculating) the Guidelines 

range, treating the Guidelines as mandatory, failing to consider 

the § 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence--including an explanation for any deviation from the 

Guidelines range.” Gall, 552 U.S. at 51.

We next “consider the substantive reasonableness of 

the sentence imposed.” Id. At this stage, we “take into 

account the totality of the circumstances, including the extent 

of any variance from the Guidelines range.” Id. “If the 

district court decides to impose a sentence outside the 
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Guidelines range, it must ensure that its justification supports 

‘the degree of the variance.’” United States v. Evans, 526 F.3d 

155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008) 

(quoting Gall, 552 U.S. at 51). 

Our review of the record convinces us that Smith’s 

ninety-five-month variant sentence was procedurally and 

substantively reasonable. First, there were no significant 

procedural errors in the sentence: the district court properly 

calculated Smith’s advisory Guidelines range; considered the 

§ 3553(a) factors; and explained that it was varying from the 

Guidelines range because that range did not adequately account 

for the nature and circumstances of the offense, Smith’s 

criminal history, and the need to protect the public from 

further financial crimes.

Additionally, the sentence is substantively 

reasonable. The district court considered the parties’ 

arguments and supported the twenty-four-month upward variance 

with a thoughtful analysis of relevant § 3553(a) factors. 

Notably, the court discussed Smith’s extensive history of 

larceny, the harm his crimes had caused, and his demonstrated 

lack of respect for the law. 
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III

Smith contends that his sentence was the result of an 

upward departure under the Guidelines. See USSG § 4A1.3. He 

takes issue with the methodology used by the district court in 

calculating his departure sentence.

The district court offered two separate rationales for 

imposing a sentence above Smith’s advisory Guidelines range: 

(1) the § 3553(a) statutory factors; and (2) the Guidelines 

departure provisions. In Evans, we stated:

[A]fter calculating the correct Guidelines range, if 

the district court determines that a sentence outside 

that range is appropriate, it may base its sentence on 

the Guidelines departure provisions or

When . . . a district court offers two or more 

independent rationales for its deviation, an appellate 

court cannot hold the sentence unreasonable if the 

appellate court finds fault with just 

on other 

factors so long as it provides adequate justification 

for the deviation. . . . 

one of these 

rationales.

Id. at 164-65. Under Evans, because we have found Smith’s 

variant sentence--imposed using the § 3553(a) factors--to be 

procedurally and substantively reasonable, there is no need to 

address the reasonableness of the same sentence under the 

alternative rationale. 
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IV

We accordingly affirm. 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