United States v. Berry ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4295
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHARONE JERMAINE BERRY, a/k/a Shaun Smith, a/k/a Jerome
Smith,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:08-cr-00043-RGD-TEM-1)
Submitted: January 27, 2010 Decided: March 12, 2010
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard Cooke, Brian
J. Samuels, Assistant United States Attorneys, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharone Jermaine Berry appeals his jury conviction and
286-month sentence for possession with intent to distribute
cocaine base within 1000 feet of school property, in violation
of 21 U.S.C. §§ 841, 860 (2006); identification theft, in
violation of 18 U.S.C. § 1028(a)(7) (2006); false representation
of a social security number, in violation of 42 U.S.C.
§ 408(a)(7)(B) (2006); and aggravated identity theft, in
violation of 18 U.S.C. § 1028A (2006). On appeal, Berry asserts
that: (i) the district court erred when it denied his motion to
suppress; (ii) his identity theft and aggravated identity theft
convictions must be reversed in light of the Supreme Court’s
recent holding in Flores-Figueroa v. United States, 129 S. Ct.
1886 (2009); and (iii) his sentence is procedurally unreasonable
because the district court allegedly failed to provide a
sufficient statement of reasons for the sentence it imposed.
Although we vacate Berry’s identity theft and aggravated
identity theft convictions and their corresponding sentences, we
affirm the remainder of the district court’s judgment.
On appeal from a district court’s denial of a
suppression motion, we review the district court’s factual
findings for clear error and its legal determinations de novo.
See United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009).
When a defendant’s suppression motion has been denied, we review
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the evidence in the light most favorable to the Government. See
United States v. Farrior, 535 F.3d 210, 217 (4th Cir.), cert.
denied, 129 S. Ct. 743 (2008). We also defer to the district
court’s credibility determinations. See United States v. Abu
Ali, 528 F.3d 210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct.
1312 (2009). With these standards in mind, and having reviewed
the transcript of the suppression hearing and the parties’
briefs, we conclude that the district court did not err in
denying Berry’s motion to suppress.
We nonetheless agree that Berry’s § 1028A aggravated
identity theft conviction and his § 1028(a)(7) identity theft
convictions, as well as their corresponding sentences, must be
vacated in light of Flores-Figueroa. * In Flores-Figueroa, which
was decided after Berry was convicted and sentenced by the
district court, the Supreme Court held that Ҥ 1028A(a)(1)
requires the Government to show that the defendant knew that the
means of identification [stolen] belonged to another person.”
129 S. Ct. at 1894. Although Flores-Figueroa did not address
the knowledge necessary for a § 1028(a)(7) conviction, “when
Congress uses the same language in two statutes having similar
*
Although Berry moved for a judgment of acquittal on his
§ 1028A conviction, thereby preserving this issue for appeal, we
review Berry’s challenge to his § 1028(a)(7) convictions for
plain error. See United States v. Smith, 441 F.3d 254, 271
(4th Cir. 2006).
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purposes, particularly when one is enacted shortly after the
other, it is appropriate to presume that Congress intended that
text to have the same meaning in both statutes.” Smith v.
Jackson, MS, 544 U.S. 228, 233 (2005). Because § 1028(a)(7)’s
wording is virtually identical to § 1028A, both statutes
criminalize identity theft, and § 1028A was passed shortly after
§ 1028(a)(7), we agree that the Supreme Court’s holding in
Flores-Figueroa should apply to a § 1028(a)(7) conviction, as
well. Compare 18 U.S.C. § 1028(a)(7) (2006) (making it unlawful
for someone to “knowingly transfer[], possess[], or use[],
without lawful authority, a means of identification of another
person with the intent to commit, or to aid or abet, or in
connection with, any unlawful activity that constitutes a
violation of Federal law, or that constitutes a felony under any
applicable State or local law) with 18 U.S.C. § 1028A(a)(1)
(2006) (making it unlawful for someone to “knowingly transfer[],
possess[], or use[], without lawful authority, a means of
identification of another person”).
The Government concedes that Flores-Figueroa is
retroactively applicable to Berry’s appeal, see Griffith v.
Kentucky, 479 U.S. 314, 328 (1987), and acknowledges that the
record is devoid of evidence establishing that Berry knew the
identification he stole belonged to another person. Because we
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agree, we vacate Berry’s identity theft and aggravated identity
theft convictions, as well as their respective sentences.
We nonetheless affirm the remainder of the district
court’s judgment. In evaluating the district court’s explanation
for a selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference 18 U.S.C. §
3553(a) (2006) or discuss every factor on the record. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the
same time, the district court “may not presume that the
Guidelines range is reasonable,” but “must make an
individualized assessment based on the facts presented.”
Gall v. United States, 552 U.S. 38, 50 (2007).
Against this backdrop, we recognized in United
States v. Carter, 564 F.3d 325 (4th Cir. 2009), that the
“individualized assessment . . . must provide a rationale
tailored to the particular case at hand and [be] adequate to
permit meaningful appellate review.” 564 F.3d at 330 (internal
quotation marks and citation omitted). Thus, a recitation of
the § 3553(a) factors and purposes is insufficient. Likewise, a
conclusory statement that a specific sentence is the proper one
does not satisfy the district court’s responsibilities. Id. at
328-29. In addition, we “may not guess at the district court's
rationale, searching the record for statements by the Government
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or defense counsel or for any other clues that might explain a
sentence.” Id. at 329-30.
Despite the foregoing considerations, the district
court’s explanation "need not be elaborate or lengthy." Id. at
330. “That is especially true where, as here, the sentence is
inside the advisory guidelines range.” United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009). “Gall was quite
explicit that district courts should provide more significant
justifications for major departures than for minor ones. But
when a district court does not depart or vary at all, it may
provide a less extensive, while still individualized,
explanation.” Id. (internal citations, quotation marks and
brackets omitted). “This is because guidelines sentences
themselves are in many ways tailored to the individual and
reflect approximately two decades of close attention to federal
sentencing policy.” Id. (internal quotation marks and citation
omitted). We have reviewed the transcript of Berry’s sentencing
and find that the district court adequately explained its
rationale for the within-Guidelines sentence it imposed and,
although not overly detailed, the district court’s reasoning for
Berry’s sentence was sufficiently individualized and reflected a
considered rationale.
Based on the foregoing, we vacate Berry’s conviction
and sentence for aggravated identity theft under § 1028A, as
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well as his convictions and sentences for identity theft under
§ 1028(a)(7), affirm the remainder of the district court’s
judgment and remand to the district court for further
proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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