United States v. Robert Nedd , 691 F. App'x 776 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4789
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT NEDD, a/k/a Pizza, a/k/a P,
Defendant – Appellant,
No. 16-4793
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT NEDD, a/k/a Pizza, a/k/a P,
Defendant - Appellant.
Appeals from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, District Judge. (1:14-cr-00479-JKB-7; 1:14-CR-00521-JKB-1)
Submitted: June 20, 2017 Decided: June 22, 2017
Before SHEDD, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. DeMartin, LAW OFFICE OF MICHAEL D. DEMARTIN, LLC, Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, David Metcalf,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Robert Nedd appeals his convictions and sentence of 168 months of imprisonment
for conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C.
§ 1962(d) (2012), and being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g) (2012). He contends that his sentence is unreasonable because his convictions
should not have been grouped together, and the district court did not properly explain the
upward variant sentence imposed. We affirm.
Because Nedd did not object to the grouping calculation in the district court, we
review this issue for plain error. See United States v. Aplicano-Oyuela, 792 F.3d 416, 422
(4th Cir. 2015). To establish plain error, a defendant must show that (1) there was error,
(2) the error was plain, and (3) the error affected his substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126-27 (2013). Even if a defendant establishes all three elements,
we may exercise our discretion to correct a plain error only when necessary to prevent a
miscarriage of justice or to ensure the fairness, integrity, or public reputation of judicial
proceedings. United States v. McNeal, 818 F.3d 141, 148 (4th Cir. 2016).
We conclude the district court properly grouped Nedd’s convictions as required by
the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual §§ 3D1.1, 3D1.4,
5G1.2 & n.1 (2015). Insofar as Nedd contends the district court erred by determining a
Guidelines range of 100 to 125 months for the firearm charge, the Guidelines require the
court to “determine the total punishment and . . . impose that total punishment on each such
count.” USSG § 5G1.2(b).
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Next, “[w]hile 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) (internal
quotation marks omitted). We conclude the district sufficiently explained the sentence that
it imposed. Among other things, the court strongly emphasized the need to protect the
public and to deter Nedd from engaging in criminal conduct, pointed out his serious
criminal background, including a multi-decade sentence for attempted murder, noted his
disrespect for the law by acquiring a firearm immediately after being released from prison,
and cited his membership in an exceptionally violent criminal organization. Finally,
insofar as Nedd contends that his sentence is substantively unreasonable, we conclude in
this case that an upward variance of 43 months from the top of the Guidelines range is not
unreasonable. See, e.g., United States v. Diosdado-Star, 630 F.3d 359, 362, 367 (4th Cir.
2011); United States v. Evans, 526 F.3d 155, 164 (4th Cir. 2008).
Accordingly, we affirm the judgments of the district court. 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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