2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/596NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 13

- 3701

________________
UNITED STATES OF AMERICA

v. TYRENZO MORTON,

Appellant

________________ Appeal from the United States District Court for the We s tern District of Pennsylvania (D.C. Criminal Action No. 2

- 1 3

- c r - 0 0 0 55

- 001 ) District Judge: Honorable Alan N. Bloch

________________ Submitted Under Third Circuit LAR 34.1(a)

June 9 , 2014
Before: AMBRO , GREENBERG, a nd BARRY , Circuit Judges

(Opinion filed : June 18, 2014 )

________________ OPINION

________________ AMBRO, Circuit Judge Tyrenzo Morton pled guilty to escape after convic tion, in violation of 18 U.S.C.2

§ 751(a) , and was s entenced to 42 months’ imprisonment. He now appeals his sentence. 1
W e affirm.
I. In December 2012 Morton escaped from a community correction center where he was finishing serving a federal sentence

. He has a serious and extensive criminal history.
In 2005 Morton was convicted in Pennsylvania s tate c ourt for possession of a firearm without a license. In 2006 he was indicted in federal court for being a felon in possession
of a firearm . In 2007, while on pre - trial bond for the 2006 offense, he was agai n caught possessing a firearm and indicted on a second felon in possession charge. Morton was sentenced to 41 months’ imprisonment for the 2006 offense and 57 months’ imprisonment on the 2007 offense. It was while serving t ime for these offenses that he escaped from the community correction center. Six weeks after escaping from the center, Morton was arrested during a traffic stop. He subsequently pled guilty to escape after conviction, in violation of 18 U.S.C. § 751(a). At sentencing, neither Morton nor the Government contested the Presentence Investigation Report ’s Guidelines calculation, which provided for a range of 15 to 21 months’ imprisonment. However, the Government sought an upward variance to 60 months’ imprisonment, the statutory max imum for a violation of § 751(a). Morton objected.

1 The District Court had jurisdiction under 18 U .S.C. § 3231. Our jurisdiction is pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).3

At Morton ’s sentencing hearing in August 2013 t he District Court explained that the Guidelines range was inappropriately low and that Morton’s prior record called for an upward variance

. (App. at 71

- 80 .) As noted, t he Court imposed a sentence of 42 months’ imprisonment.
II.
Morton claims that the sentence is procedurally and substantively unreasonable. We review both the procedural and the substantive reasonableness of a district court's
sentence fo r abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007); United
States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) ( en banc ). We must “ensure that the [D]istrict [C]ourt committed no significant procedural error, such as 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.” Gall , 552 U.S. at 51. If the sentence is procedurally sound, we then consider if it is substantively reasonable given “the totality of the circumstances.” Id.
Morton argues that the District Court failed to explain its reason s for imposing an upward variance and fail ed to consider meaningfully the § 3553(a) factors. However, as Morton admit s, the District Court gave a lengt hy explanation of the sentence. (App. at
71

- 80.) T he Court reviewed the arguments by the Government and Morton and considered the § 3553(a) fact ors when it impose d the above

- Guidelines sentence

. ( Id. ) 2

2 Morton also argues that the sentence is procedurally unreasonable because the District Court did not follow the procedures for an upward departure described in § 4A1. 3 of the4

The Court determined that Morton’s extensive criminal record, the evident failure of his prior incarceration to deter him from engaging in further criminal activity, his disregard for the law, a nd the risk he posed to the public , warranted an upward variance in his

sentence

. ( Id. at 75

- 77.) That determination was neither procedurally nor substantively
unreasonable. For these reasons, we affirm.

Sentencing Guidelines. However, as t he Government correctly explains, Morton’s reliance on § 4A1.3(a) is incorrect because that section deals with upward departures , whereas in this case the Government sought an upward variance based on the § 355 3(a) factors. See United States v. Fumo , 655 F.3d 288, 317 (3d Cir. 2011) (explaining that a “departure” “diverges . . . from the originally calculated range ‘for reasons contemplated by the Guidelines themselves,’” whereas a “variance” “diverges . . . f rom the Guidelines, including any departures, based on an exercise of the court's discretion under § 3553(a).”) ( internal quotation marks and citation omitted). The District Court clearly stated that it was varying upward based on the § 3553(a) factors. Therefore, § 4A1.3 is irrelevant. T he Government claims that this argument was waived and should only be review e d for plain error. As Morton loses no matter the standard of review, we need not determine that issue

.