United States v. James Lackard , 549 F. App'x 193 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4274
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES O’BRIEN LACKARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:12-cr-00301-JAB-1)
Submitted: December 13, 2013 Decided: December 31, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant. Ripley Rand, United States
Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James O’Brien Lackard appeals his 121-month sentence,
which was imposed after he pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute heroin, in
violation of 21 U.S.C. § 846 (2012). Lackard asserts that his
sentence is both procedurally and substantively unreasonable,
and he asks that we remand his case to the district court so the
Government may consider whether, given the Department of
Justice’s recent memoranda regarding charging crimes carrying
statutory mandatory minimum sentences, it wishes to again charge
him with the crime of which he was convicted. After considering
Lackard’s arguments, we affirm the district court’s judgment.
We review a criminal sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” for
reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.),
cert. denied, ___ U.S. ___, 133 S. Ct. 216 (2012); see Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error. United States v. Evans, 526
F.3d 155, 161 (4th Cir. 2008). Procedural errors include
“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
2
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.
“[I]f a party repeats on appeal a claim of procedural
sentencing error like those at issue here, which it has made
before the district court, we review for abuse of discretion.
If we find such abuse, we reverse unless we conclude that the
error was harmless.” United States v. Lynn, 592 F.3d 572, 576
(4th Cir. 2010). For instance, if “an aggrieved party
sufficiently alerts the district court of its responsibility to
render an individualized explanation” by drawing arguments from
§ 3553 “for a sentence different than the one ultimately
imposed,” the party sufficiently “preserves its claim.” Id. at
578. However, we review unpreserved non-structural sentencing
errors for plain error. Id. at 576–77. If, and only if, we
find the sentence procedurally reasonable can we consider the
substantive reasonableness of the sentence imposed. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Because
Lackard requested a sentence different than the one ultimately
imposed by the district court, we review his sentence for abuse
of discretion. King, 673 F.3d at 283.
Lackard’s arguments to the contrary, we discern no
procedural sentencing error by the district court. Although
Lackard asserts that the district court erred when it denied his
3
request for a downward departure because he argues the district
court erroneously combined the substantive contours applicable
to his requests for a departure and variant sentence, the record
does not support this argument. Rather, the record establishes
that the district court considered what it was required to
consider in determining whether a departure was warranted and
there is no indication that the district court misunderstood its
authority to depart. See U.S. Sentencing Guidelines Manual
(“USSG”) § 5H1.6, p.s. (2012) (“In sentencing a defendant
convicted of an offense other than an offense [not at issue on
this appeal], family ties and responsibilities are not
ordinarily relevant in determining whether a departure may be
warranted.”); see also Gall, 552 U.S. at 49-50 (holding that
although “the Guidelines should be the starting point and the
initial benchmark” of calculating a proper sentence, the
district court “should then consider all of the § 3553(a)
factors to determine whether they support the sentence requested
by a party”); United States v. Brewer, 520 F.3d 367, 371 (4th
Cir. 2008) (holding that this court “lack[s] the authority to
review a sentencing court’s denial of a downward departure
unless the court failed to understand its authority to do so”).
Although Lackard also asserts that the district court
erred because it allegedly never considered whether a one-month
departure was appropriate, Lackard primarily and specifically
4
asked the district court to consider allowing him to stay at
home to care for his children rather than receive prison time.
Although defense counsel eventually asked for “some level of
departure[,]” the record confirms that the district court
carefully considered this request but determined that no
departure was warranted and that a 121-month sentence was an
adequate sentence.
Because Lackard’s 121-month sentence was the bottom of
his Guidelines range, we presume on appeal that the within-
Guidelines sentence is reasonable. United States v. Mendoza-
Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may and do
treat on appeal a district court’s decision to impose a sentence
within the Guidelines range as presumptively reasonable.”). In
an attempt to rebut the presumption afforded his within-
Guidelines sentence, Lackard argues that the district court
erred when it determined that Lackard’s care for his disabled
son had to be “irreplaceable” before Lackard could qualify for a
downward departure under USSG § 5H1.6. Although Lackard
acknowledges that this was the standard employed by this court
before United States v. Booker, 543 U.S. 220 (2005), Lackard
suggests that the continuing viability of this standard is in
“doubt post-Booker.”
Lackard’s suggestion to the contrary, however, the
Guidelines are still to be considered in determining an
5
appropriate sentence. See Gall, 552 U.S. at 49 (“As a matter of
administration and to secure nationwide consistency, the
Guidelines should be the starting point and the initial
benchmark.”). In addition, because the district court
specifically addressed several § 3553(a) factors before imposing
Lackard’s sentence and explicitly tied them to Lackard’s case,
we find that Lackard has failed to rebut the presumption of
reasonableness afforded his within-Guidelines sentence. See
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (“A defendant can only rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”) (brackets omitted).
Lackard finally asks that we remand his case to the
district court so that the Government may determine whether it
would again charge him with a crime carrying a mandatory minimum
sentence under the U.S. Department of Justice’s new policy on
charging such crimes. Other than his summary assertion that a
remand for reconsideration “would only be fair” because his case
is not yet final, Lackard presents no evidence to establish that
the Government’s failure to apply its new policy in this case
would violate his equal protection rights. See United States v.
Armstrong, 517 U.S. 456, 464 (1996) (holding that given the
broad discretion afforded federal prosecutors to enforce the
United States’ criminal laws, “in the absence of clear evidence
6
to the contrary, courts presume that [federal prosecutors] have
properly discharged their official duties”) (internal quotation
marks, brackets and citation omitted); United States v. Chemical
Found., 272 U.S. 1, 14–15 (1926) (holding that to dispel the
presumption that a prosecutor has not violated equal protection,
a criminal defendant must present “clear evidence to the
contrary”). Accordingly, we refuse Lackard’s request to remand
this case.
Based on the foregoing, we affirm the district court’s
judgment. 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
7