United States v. Jimmy Downey, Jr. , 692 F. App'x 742 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4839
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY LEE DOWNEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:16-cr-00098-LCB-1)
Submitted: July 6, 2017 Decided: July 11, 2017
Before TRAXLER, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. John Mcrae Alsup, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Lee Downey, Jr. pleaded guilty to possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court sentenced Downey above
the advisory Guidelines range to 51 months of imprisonment followed by 3 years of
supervised release, and he now appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether the sentence is
reasonable. Downey was advised of his right to file a pro se supplemental brief, but has
not done so. Finding no error, we affirm.
On appeal, counsel questions whether the district court properly allowed testimony
regarding an incident underlying pending state court charges against Downey at the
sentencing hearing. We review a sentence for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007); see also United
States v. White, 810 F.3d 212, 229 (4th Cir.), cert. denied. 136 S. Ct. 1833 (2016). In so
doing, we examine the sentence for “significant procedural error,” including “failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. We then review the substantive reasonableness of the
sentence. United States v. Evans, 526 F.3d 155, 161 (4th Cir 2008). If a district court
imposes a sentence outside of the advisory Guidelines range, we do not impose a
presumption of reasonableness, but give due deference to the district court’s decision that
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the § 3553(a) factors justified the extent of the variance. United States v. Pauley, 511
F.3d 468, 473-74 (4th Cir. 2007).
We have thoroughly reviewed the record and conclude that the sentence is both
procedurally and substantively reasonable. The district court properly calculated the
advisory Guidelines range, responded to the parties’ sentencing arguments, thoroughly
explained the chosen sentence, and did not err in admitting any testimony at the
sentencing hearing. In addition, based on the factors identified by the district court, the
above-Guidelines sentence is also substantively reasonable.
We have examined the entire record in accordance with the requirements of
Anders and have found no meritorious issues for appeal. Accordingly, we affirm the
judgment of the district court. This court requires that counsel inform Downey, in
writing, of the right to petition the Supreme Court of the United States for further review.
If Downey 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 withdraw from
representation. Counsel’s motion must state that a copy thereof was served on Downey.
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 in the decisional
process.
AFFIRMED
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