United States v. Darryl Terry ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4659
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL TERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:13-cr-00116-H-1)
Submitted: March 26, 2015 Decided: April 7, 2015
Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Terry pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012),
and was sentenced to 110 months’ imprisonment. Terry appeals,
challenging the procedural reasonableness of his sentence. For
the following reasons, we affirm.
At sentencing Terry sought a downward variance, asserting
that his personal history and characteristics were mitigating
factors and arguing that, in essence, the criminal history
category overstated the seriousness of his history. The
district court denied Terry’s request and sentenced him at the
bottom of the Guidelines range.
On appeal, Terry asserts that the district court erred by
failing to address his arguments for a downward variance and
failing to explain why it rejected those arguments in imposing a
within-Guidelines sentence. The Government responds that the
district court expressly rejected the variance request and its
reasons were clear based on the hearing’s context.
Alternatively, the Government asserts that any error by the
district court was harmless.
A sentence is procedurally reasonable if the district court
properly calculates the defendant’s advisory Guidelines range,
gives the parties an opportunity to argue for an appropriate
sentence, considers the § 3553(a) factors, does not rely on
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clearly erroneous facts, and sufficiently explains the selected
sentence. See Gall v. United States, 552 U.S. 38, 49-51 (2007).
As we have explained, “[r]egardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
must place on the record an individualized assessment based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). The explanation must be sufficient to allow for
“meaningful appellate review,” such that we need “not guess at
the district court’s rationale.” Id. at 329, 330 (internal
quotation marks omitted).
Where, as here, the defendant properly preserves the issue
of procedural reasonableness below, this court must reverse
unless the error was harmless. United States v. Lynn, 592 F.3d
572, 576 (4th Cir. 2010). The government bears the burden of
demonstrating “that the error did not have a substantial and
injurious effect or influence on the result [such that this
court] can say with fair assurance that the district court’s
explicit consideration of the defendant’s arguments would not
have affected the sentence imposed.” United States v. Boulware,
604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and
alterations omitted).
After reviewing the sentencing transcript, we conclude that
the district court’s explanation was insufficient to render the
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sentence procedurally reasonable. The court did not expressly
address why it rejected Terry’s arguments for a downward
variance or why it selected a 110-month sentence. Such a
failure constitutes procedural error. Lynn, 592 F.3d at 585.
Nevertheless, the government has satisfied its burden of
demonstrating that the district court’s error was harmless. The
district court confirmed its familiarity with Terry’s background
and personal circumstances as relevant to the § 3553(a)
sentencing factors when it adopted the presentence report,
ordered child support, and referenced a letter in support of
Terry that it had received and read. Additionally, Terry’s
arguments for a downward variance were not persuasive,
especially in light of his criminal history. See Boulware, 604
F.3d at 839-40 (explaining that comparative weakness of a
defendant’s arguments for a lower sentence is one reason to
decline to remand a case for further explanation). Moreover,
the sentencing transcript reveals that the district court
considered Terry’s arguments for a downward variance, as this
was the only issue contested at sentencing, and the court
imposed sentence immediately after hearing the attorneys’
arguments. Thus, we are persuaded that, in this case, any error
in the district court’s explanation for the sentence it imposed
is harmless and that remand is not warranted.
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Accordingly, we affirm Terry’s sentence. 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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